STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEFFREY A. SIMS,
Petitioner,
vs.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Respondent.
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) Case No. 05-3516
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on March 17, 2006, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: N. Mark New, II, Esquire
Hawkin, Malin & Wenzel Post Office Box 477
Jacksonville, Florida 32201
For Respondent: Dennis M. Flath, Esquire
Department of Children and Family Services
1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759
STATEMENT OF THE ISSUE
Whether Respondent is guilty of an unlawful employment practice by failure to promote Petitioner on February 9, 2005, due to discrimination against his handicap.
PRELIMINARY STATEMENT
On March 11, 2005, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR).
On August 22, 2005, FCHR issued its Determination: No Cause and Notice of Determination: No Cause. On or about September 16, 2005, Petitioner filed a Petition for Relief.
The case was referred to the Division of Administrative Hearings on or about September 22, 2005. The Division's file reflects all pleadings, Orders, and Notices entered herein.
At the March 17, 2006, disputed-fact hearing, Petitioner testified on his own behalf and presented the oral testimony of Madeline Davidson. Respondent presented the oral testimony of John Almeida, Ronald Chisolm, and Jennifer Granto and had Respondent's Exhibits 1, 2, 3, 4, 5A and 5B, and 6, admitted in evidence.
No transcript was filed. The parties' respective Proposed Recommended Orders have been considered in preparation of this Recommended Order.1
FINDINGS OF FACT
On March 11, 2005, Petitioner filed a Charge of Discrimination dated March 1, 2005, with FCHR. This Charge alleged only disability discrimination through Respondent's failure to promote Petitioner on or about February 9, 2005. It
makes no mention of any discriminatory acts or omissions by Respondent Employer preceding interviews on January 26, 2005.
After an August 22, 2005, Determination: No Cause by FCHR, Petitioner timely filed a Petition for Relief on September 16, 2005. In addition to alleging discrimination due to a failure to promote on February 9, 2005, the Petition for Relief alleged for the first time that:
Petitioner requires a 19-inch monitor to perform his duties. Despite repeatedly requesting such a monitor, the Petitioner did not timely receive a monitor. In fact, it was not until the Petitioner filed a previous Complaint with the FCHR that he received the appropriate monitor. This was years after his initial request.
The parties orally stipulated that Petitioner is "legally blind," and that Petitioner was a qualified candidate for the promotion interviewed for on January 26, 2005, which position was awarded to a non-disabled person on February 9, 2005.
Petitioner's condition constitutes a "handicap" as contemplated by Chapter 760, Florida Statutes.
Petitioner has been employed for 21 years by Respondent, Department of Children and Family Services (DCF). At all times material, his worksite has been the North Florida
Evaluation and Treatment Center (NFETC) in Gainesville, Florida. This facility houses accused persons who are incompetent to
proceed to a criminal trial and those found not guilty in a court of law by reason of insanity. At the time of his application for the promotion at issue, Petitioner was a "T.R. Senior Supervisor I." He has been at that grade level for 19 years, and by all accounts is rated an excellent, long-term employee. His position involves supervision of five officers and twenty inmates.
Petitioner's handicap makes it difficult for him to read and difficult for him to use a computer. To fulfill all the requirements of his current position and the promotional position at issue, he requires software for his computer which is called "Zoom Tech." Without this accommodation, he cannot read necessary information on a computer screen.
Petitioner became aware and informed of the Zoom Tech software, which requires a 19-inch monitor, through the Division of Blind Services (DBS), in December 1998.
Petitioner repeatedly requested that Respondent Employer provide him with the Zoom Tech software and a 19-inch monitor.
Respondent never provided the Zoom Tech software as an accommodation for Petitioner's handicap, so DBS provided Zoom Tech software to Petitioner both at home and at DCF in late 1998 or January 1999. However, Respondent Employer refused to load the software onto Petitioner's computer at work.
In April of 1999, Madeline Davidson of DBS met with Petitioner and Respondent's representatives regarding having the Zoom Tech software loaded onto Petitioner's computer at work. One of Respondent's technicians informed Petitioner and
Ms. Davidson that the Zoom Tech software could not be loaded onto Petitioner's work computer until June of 1999.
Ms. Davidson offered to have a DBS software technician install the Zoom Tech software on the work computer. Respondent maintained that only its own technicians were permitted to work on its computers.
Respondent did not install the Zoom Tech software on Petitioner's computer at work until August 1999, a delay of eight months.
Prior to receiving the Zoom Tech software in August 1999, Petitioner was unable to use his DCF computer, was not able to complete work on a timely basis, and had to rely on other supervisors and subordinate staff members to assist him in keeping up-to-date on issues that needed his attention. With the Zoom Tech software, he is able to fully perform all aspects of his job description.
Petitioner's request for installation of the Zoom Tech software provided by DBS was a request for a reasonable accommodation of his visual handicap. Respondent's delay of eight months in installing it was unreasonable.
Petitioner testified that he could not use the Zoom Tech software on his 17-inch monitor and that Respondent did not provide him with a 19-inch monitor at work until 2005, after Petitioner had filed a charge of discrimination prior to the current charge of discrimination at issue in this cause. However, because Petitioner has an excellent work history predating 2005; because Petitioner interviewed for the promotion at issue in the instant cause on January 26, 2005; because the cause at issue herein (promotion) arose when someone else was promoted in place of Petitioner on February 9, 2005; because the current charge of discrimination underlying the instant cause was filed March 11, 2005; and because of the chronology related by Petitioner of promotional interviews in 2003 and 2004 (see Finding of Fact 20); and because of Petitioner's description of problems with his 19-inch monitor (see Findings of Fact 16-19), it appears that Petitioner was probably mistaken about the year he received the 19-inch monitor from Respondent, and it further appears that he first received a 19-inch monitor from Respondent sometime prior to 2005.
Also, because Petitioner testified that after he filed a prior charge of discrimination, his computer failed completely and Ron Leslie, NFETC'S new assistant administrator, got him a new computer and the 19-inch monitor, it is not clear whether Respondent provided the 19-inch monitor as part of a settlement
of the prior charge of discrimination or for another reason. Therefore, although Petitioner requested the 19-inch monitor as a reasonable accommodation of Petitioner's handicap and Respondent unreasonably delayed providing the reasonable accommodation, it appears Petitioner was provided with the requested accommodation before the current promotion issue arose, and that DCF’s failure to timely provide the 19-inch monitor was at least included within a prior charge of discrimination.
Petitioner also testified that after receiving the 19- inch monitor, Respondent periodically got computer upgrades or other changes which interfered with the Zoom Tech software on Petitioner's DCF computer. During these periods, Petitioner experienced delays in having the Zoom Tech software re- installed. This testimony simultaneously suggests that Petitioner had a 19-inch monitor for some period of time before 2005, instead of not getting one until 2005, and that during the intermittent periods of time after 1999 when Petitioner did not have the necessary software, he was intermittently unable to use his work computer or perform some functions of his job.
On one such occasion, Petitioner had to go to a supervisor above his direct supervisor in the normal chain of command because both his computer and its Zoom Tech software had been removed from his desk while he had been on vacation. At
that point, Petitioner's immediate supervisor had not solved Petitioner's computer problems for 18 days. Within one work-day of his report to the senior supervisor, the senior supervisor, Denny Guest, had Petitioner's software, computer, and monitor squared-away. Again, there is no clear time line of when this event occurred, but it surely occurred before the promotion interviews January 26, 2005, and the evidence as a whole shows that Petitioner had a suitable monitor before 2005. It also shows that on that particular occasion, which Petitioner felt was particularly egregious, Petitioner was without reasonable accommodation for his handicap for only 21 days.
During those times when Petitioner did not have access to the necessary software, he was unable to perform certain work. In addition, other NFETC employees were able to use their computers at those times that Petitioner was not able to use his. Petitioner believed this situation hindered his ability to be promoted.
In 2003 and 2004, Petitioner interviewed for several promotions. He was not selected for any of them.
Thereafter, Petitioner scheduled a meeting with Ron Leslie to determine what Petitioner could do to enhance his chances of getting a promotion in the future. Madeline Davidson attended the meeting at Petitioner's request. During that meeting, Mr. Leslie suggested that Petitioner work more with the
computer and join groups and committees to work out problems as other staff members did. Mr. Leslie told Petitioner and
Ms. Davidson that if Petitioner were promoted, he would be required to make presentations, and as a result of Petitioner's handicap, Mr. Leslie questioned whether Petitioner could do that. Petitioner and Ms. Davidson informed Mr. Leslie that his perception was incorrect and that Petitioner was, in fact, capable of making such presentations using boards and his new visual aids.
In response to this meeting, Petitioner joined the EEOC Committee and attended its day-time meetings, even though he was on the night shift.
In January of 2005, Petitioner applied for a Supervisor II position. Specifically, he applied for the Building 10 Night Shift Building Manager position, classified as "Unit T/R Senior Supervisor II – F/C - SES."
NFETC management appointed a three-person selection committee to interview qualified candidates for the promotional slot. John Almeida, Ronald Chisolm, and George McClain served on the selection committee.
Petitioner was one of seven qualified candidates interviewed by the selection committee.
The interview included written and oral questions.2/
Prior to the interviews, Ronald Chisolm was told by Ron Leslie that Petitioner's eyesight "might be an issue;" that Mr. Leslie wanted to be fair; and that Mr. Leslie did not want any complaints about unfairness.
After a lot of discussion of how it was to be accomplished, Petitioner was offered the use of his own computer and special monitor to read the written part of the interview and to type his responses. However, Petitioner elected to have the selection committee read him the questions and transcribe his answers.
Mr. Chisolm had concerns that the oral reading and transcription of oral answers method, which Petitioner had selected, might give Petitioner a greater chance of success than the other candidates, because Mr. Chisolm perceived the situation as giving Petitioner two "verbal" (oral) tests instead of one oral and one written test like all the other candidates. At the suggestion of the Employer’s Human Resources Office,
Mr. Chisolm drafted a statement for Petitioner to sign, acknowledging that the foregoing procedure was Petitioner's choice.
In fact, the typed statement Petitioner signed, and which was witnessed by the three interviewers, only acknowledges that the questions were read to him at the specific date and time named. Petitioner testified that the interview team had
told him that he could not take the written questions out of the interview room and that Zoom Tech could not be placed on the computer in the testing area; this may have been a misunderstanding on Petitioner's part. Mr. Almeida testified credibly that he could put any font or the Zoom Tech software on any computer. Mr. Almeida and Mr. Chisolm both testified credibly that such an offer had been made to Petitioner and that Petitioner's choice of transcription had been of Petitioner’s free choice, signified by his signing the described statement.
The undersigned did not get the sense that Petitioner was coerced or that he involuntarily agreed to have the written questions read to him or transcribed for him.
Respondent entered into evidence the entire selection package comprised of eight exhibits detailing the scoring of each individual candidate, as well as the final calculations of the composite of all the interview scores.
The numeric results of the interviews were compiled by the three-member selection committee and forwarded to a three member management team in NFETC's Operations Department for a final decision on whom to promote.
The highest candidate score was that of Watson Louidor at 50.50. Petitioner scored second at 46.10. The other five candidates scored in a lower range between 44.96 and 29.45.
The verbal (oral) part was worth 25 percent of the score. The written part was 50 percent of the score. Time and attendance counted for 15 percent of the score. Prior disciplinary actions were 10 percent of the score. Petitioner and the highest scoring candidate had very close scores, but it was the disparity in the written portion of the interview which the sighted higher scoring candidate wrote for himself and which Petitioner had written for him by Mr. Almeida which was most significant:
PETITIONER LOUIDOR
Verbal (25%) 7.165 6.750
Written (50%) 35.330 40.000
Time and
Attendance (15%) 2.250 2.250
Disciplinary (10%)
Action 1.300 1.500
46.100 50.500
However, Petitioner has not claimed that he had too little time to correctly answer or too little time to complete the written interview, and Petitioner has not suggested that his oral answers on the written questions were not correctly transcribed for him.
The three-member Operations Department management team selected the top-scoring candidate, Mr. Louidor, for the promotion.
Mr. Louidor had worked at NFETC less time than Petitioner. Petitioner felt he, not Mr. Louidor, was the most qualified candidate, due to Petitioner’s much longer experience working at NFETC and because of post-interview conversations Petitioner had with Mr. Almeida and Jennifer Granto. For these reasons, Petitioner believed he had been discriminated against because of his handicap.
Petitioner testified that after his interview,
Mr. Almeida, the member of the interview team who had transcribed his oral answers, told Petitioner that he had been the highest scorer on the interview portion and that Petitioner would get the promotion. Petitioner further testified that Ms. Granto, a member of the three-member management team which
made the final promotion decision, had led Petitioner to believe that although he was not the highest scorer, as the second highest scorer, Petitioner would get the promotion if the highest scorer did not accept the promotion, which was likely.
Ms. Granto and Mr. Almeida acknowledged that they had each had a conversation about the interviews with Petitioner, but each stated that Petitioner had misunderstood their encouragement for his good score and good interview, as a promise of the promotion.
Mr. Almeida testified credibly that when he discussed the interview process with Petitioner, it was in general terms
only; he never referred to the scoring process and final scores of the candidates; and he was certain that he had never told Petitioner that Petitioner was the top-scoring candidate.
Ms. Granto testified that Petitioner was considered to be a good employee and had clearly made progress in his presentation of himself in interviews for promotions.
Petitioner and Ms. Granto both testified that she had encouraged Petitioner in the past to show more initiative and that in response to suggestions by Ms. Granto and others, Petitioner had elected to join the EEOC Committee. (See Findings of Fact 21- 22). Ms. Granto also testified that she and the other two management team members had felt that Petitioner's EEOC Committee membership was a step in the right direction towards a promotion for him.
Ms. Granto further testified that the management team's final selection for promotion had been based on the candidates' respective interview scores, plus the management team's personal knowledge of the top-scoring candidate,
Mr. Louidor. In some prior situations, management had promoted a lower-scoring candidate over a higher-scoring candidate, but in this instance, they viewed the top-scoring candidate,
Mr. Louidor, as being energetic, positive, possessing initiative, and having new ideas that he had been regularly
bringing to the attention of his supervisors for the last year, so that selecting him for the promotion was an easy choice.
Regarding Petitioner, Ms. Granto testified that she and the other management team members felt that Petitioner performed his job well but he had not presented as positive an interview as did the top-scoring candidate, and they felt that the top-scoring candidate would bring more energy to the promotional position. They felt Petitioner's weak spot was his lack of initiative above and beyond his basic job description.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding, in accordance with Section 120.569, Subsection 120.57(1), and Chapter 760, Florida Statutes.
Herein, no objection was interposed, so Petitioner went forward to present evidence of Respondent's failure to accommodate his handicap: First, by Respondent's refusal to install or permit the installation of Zoom Tech software between December 1998 and August 1999; and second, by Respondent's failure or refusal to provide a 19-inch monitor until some date which is unclear. Petitioner's request(s) to provide either, or both, accommodations are concluded to be reasonable. However, neither failure to accommodate was specifically named in
Petitioner's March 11, 2005, Charge of Discrimination which is the subject matter of the instant case.
Acts of discrimination in employment are time-barred unless a Charge of Discrimination is filed within 365 days. See Section 760.11(1), Florida Statutes, and Young v. Dept. of Business and Professional Regulation, DOAH Case No. 03-1140, (RO: July 1, 2003; FO: February 26, 2004) and cases cited in the Recommended Order; Woods v. American Red Cross Blood Services, DOAH Case No. 01-1763 (RO: September 17, 2001; FO: July 26, 2002); and Services v. Volusia County Government, DOAH Case No. 00-1219 (RO: May 1, 2001; FO: September 15, 2001).
Therefore, Respondent's failure to install the Zoom Tech software and to provide a 19-inch monitor to Petitioner between December 1998 and August 1999, was discriminatory and shocking to the public conscience, but it is time-barred and may not be redressed in this proceeding. No failure of the Employer to provide hardware (monitor) or software (Zoom Tech) prior to March 11, 2004, (365 days prior to the filing of the instant charge of discrimination) may be redressed in this proceeding.
Petitioner did not prove the date he first got a 19- inch monitor, and although he claimed it was not until 2005, the greater weight of the credible evidence suggests it was much earlier. The most that can be determined from the evidence presented is that after August 1999, the longest period
Petitioner was without the combined hardware and software necessary to reasonably accommodate his handicap was 21 days at some point prior to January 26, 2005. Assuming arguendo, that this problem (of no 19-inch monitor and frequent downtime due to computer upgrades, etc.) occurred between March 11, 2004, and March 11, 2005, so as to not be time-barred, the evidence herein still shows that as soon as Petitioner approached the correct supervisor, the problem was corrected within 24 hours, which at worst, is a de minimus failure to accommodate.
Moreover, putting a light most favorable to the Petitioner on the facts, it appears that the accommodation of a 19-inch computer monitor was resolved either via settlement of a prior charge of discrimination or by another form of accord and satisfaction. Certainly, Petitioner’s evidence shows that DCF’s initial failure to provide a 19-inch monitor was/is part of a prior and different charge of discrimination than the one that forms the basis of the instant case so that, as a result, it should not be addressed here.
It is also noted that Respondent's eight-month delay in installing Zoom Tech software to accommodate Petitioner in 1999, Respondent's delay in providing the 19-inch monitor, whenever that delay occurred, and the 21 days of downtime and other intermittent periods of downtime were not raised in the March 11, 2005, charge of discrimination which gave rise to this
instant case. Therefore, FCHR never had an opportunity to investigate or rule on those allegations in the instant case, and Petitioner arguably was not entitled to add such new charges via his Petition for Relief after FCHR had entered its
August 22, 2005, Determination: No Cause, in relation to his March 11, 2005, charge of discrimination, unless the newly- alleged acts arose between the filing of the instant charge and petition.3/
All that said, just because Petitioner is not entitled to relief (damages) based on those issues which are time barred, which were otherwise previously determined, or which were not considered in the FCHR's Determination, does not mean that those earlier failures by the Employer to reasonably accommodate Petitioner's handicap may not be considered herein for the purpose of weighing credibility or assessing the allegations which have been timely and properly named in the March 11, 2005, Charge and subsequent Petition.
It is, therefore, time to consider the January 26, 2005, interviews and February 9, 2005, promotion which are the subjects of the March 11, 2005, Charge and Petition.
Petitioner might have done better at the interview level if he had used Zoom Tech on a 19-inch monitor to take the written portion of the January 26, 2005, interview. Then again, he might not have done better. Under the circumstances,
Respondent Employer had an obligation to offer him the option to use Zoom Tech and a 19-inch monitor to answer the interview questions, but the greater weight of the evidence is that Petitioner rejected that methodology.
Two credible members of the selection committee (Almeida and Chisolm) maintained that Petitioner elected to have someone else ask him the written questions orally and write his answers for him.
Herein, we do not have a situation in which Petitioner lost interview points because he was slower or less accurate due to the Employer's failure to provide a computer and software which accommodated his handicap.
Nor is this a case in which Petitioner has contended that his oral answers were inaccurately or incompletely transcribed.
It is conceivable that Petitioner might have done better in the January 26, 2005, interview phase if he had been able to use the Zoom Tech and a 19-inch monitor during the previous periods Respondent stone-walled or dragged its feet in initially providing them (see Finding of Fact 13), or during the periods of intermittent downtime thereafter (see Findings of Fact 17-19), but no clear nexus for such speculation was demonstrated.
Finally, this case hinges not upon discrimination against a handicapped employee, but upon Petitioner's misunderstanding of two post-interview conversations.
Two credible witnesses (Almeida and Granto) denied Petitioner's claim that they had told him he would get the promotion on the basis of his interview score. In fact, even Petitioner testified that Ms. Granto had only told him that he had come in second on the interviews and would get the promotion only if the top-scorer declined the promotion or did not get the promotion for some other reason.
While a natural suspicion may arise where an elaborate interview and testing scheme is in place and the ultimate appointment committee ignores the top candidate in favor of a lower-ranking candidate, that also is not the situation here. Here, the top-scoring interviewee was also the interviewee chosen by the management team which issued the promotion.
It is conceivable that at the point that the management team selected the highest scoring candidate over Petitioner, they may have misinterpreted, as a lack of initiative, problems Petitioner had suffered due to intermittent computer problems after August 1999 (see Findings of Fact 17- 19), but if so, it is another speculative comparison. Ms. Granto's comments were not so much a negative critique of Petitioner's past performance as they were a positive critique
of Mr. Louidor's track record of innovative suggestions presented to supervisors over the year immediately preceding his promotion. Moreover, Petitioner had not passed the threshold level of becoming the highest-scoring candidate. It would have been an exception to its own procedures if the management team had selected anyone other than the highest scorer at the interview level.
To establish a prima facie case of discrimination, Petitioner needed to establish that he is a member of a protected class or group; that he is qualified for the position in question; that despite his qualifications, he was not selected for the position (he was subjected to an adverse employment decision); that someone was selected who had similar qualifications and who was not a member of the protected group; that he was treated less favorably than similarly situated persons outside the protected group; and that there is some causal connection between his membership in the protected group and the adverse decision. McDonnell-Douglas Corporation v.
Green, 411 U.S. 792 (1973); Canino v. U.S. E.E.O.C., 707 F.2d
468 (11th Cir. 1983).
Petitioner has established all but the last prong of the prima facie test. He has not established a causal connection between his handicap and the adverse employment decision not to promote him.
Respondent Employer’s prior insensitivity and discriminatory behavior by delaying reasonable accommodations of Petitioner's handicap (delay in installation and delay in updating Zoom Tech and the 19-inch monitor) although proven,4/ is not the type of egregious behavior which equates with, or proves, either a deliberate manipulation of the January 26, 2005, test scores of seven applicants nor handicap discrimination in the February 9, 2005, appointment of the top scorer, Mr. Louidor.
Assuming arguendo, but not ruling, that a prima facie
case has been presented, once an employer articulates a legitimate non-discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Dept. of Corrections v. Chandler, 582 So. 2d 1183 at 1186; Alexander v. Fulton County, GA, 207 F.3d 1303 (11th Cir. 2000). Herein, Respondent has offered a legitimate, non- discriminatory reason for the 2005 failure to promote: specifically, that Petitioner scored second of all the candidates who applied for the promotion and that the promotion
was awarded, not to Petitioner, but to the highest scorer. Respondent's burden is only that of production, not proof, but even so, no showing of pretext has been made.
Petitioner has not carried his burden of proof and cannot prevail.
Based upon the Findings of Fact and Conclusions of Law, it
is
RECOMMENDED that the Charge of Discrimination and Petition
for Relief be dismissed.
DONE AND ENTERED this 18th day of May, 2006, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 18th day of May, 2006.
ENDNOTES
1/ It is noted that there is a paucity of references to the testimony and exhibits within each proposal.
2/ "Verbal” is the term used on the interview sheet. “Oral” is the correct term for “spoken words,” as opposed to written words.
3/ New or different types of discrimination that have not been alleged in an underlying charge of discrimination, (such as “retaliation” or “gender” added to “handicap,”) clearly may not be alleged for the first time in the Petition for Relief or at the disputed-fact hearing, because of Section 120.57(1), Florida Statutes. In those situations, there is a bright line that cannot be crossed. FCHR must first have an opportunity to investigate the allegations of the charge, and only when FCHR has entered its "proposed final agency action" by way of a Determination of "Cause" or "No Cause" on the contents of that charge of discrimination, may a Petition for Relief which attacks that proposed final agency action be filed. (See Young v. Department of Business and Professional Regulation supra. and cases cited therein.) In other words, if FCHR has never been made aware, by the charge of discrimination, of what types of discrimination are in dispute, i.e. “retaliation” or “gender,” FCHR certainly has not acted on those claims in its "Determination," which constitutes FCHR's proposed final agency action, and therefore, the Division does not acquire jurisdiction of those issues by the Petition for Relief and referral.
Where a general allegation of continuing or “pattern discrimination” over a period of time and the date of the last act of discrimination, is included in the initial charge (not the situation here), the line barring addition of allegations is less bright under Section 120.57(1), Florida Statutes, and the Division, FCHR, and courts have usually relied on the 365 days’ statute of limitations to strike it.
The present situation is an even grayer area under Section 120.57(1), Florida Statutes, but the addition of the stale factual allegations herein (failure to provide software and 19- inch monitor at various times) is arguably barred on the same legal theory for the reasons previous cited.
4/ Herein, it was not possible to make any specific findings, by name, of a DCF employee responsible for these prior acts, but DCF should be cautioned by this Recommended Order that any similar future discrimination could subject State employees to discharge. See § 760.11(15), Fla. Stat.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
N. Mark New, II, Esquire Heekin, Malin & Wenzel Post Office Box 477
Jacksonville, Florida 32201
Dennis M. Flath, Esquire Department of Children and
Family Services
1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 01, 2006 | Agency Final Order | |
| May 18, 2006 | Recommended Order | All prior failures to accomodate handicap barred by law; current failure to promote was unproven or refuted. |
