STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

BIBI QUALANDER, EEOC Case No. 15D201200079

Petitioner, FCHR Case No. 2012-00257

v. DOAH Case No. 12-2323

AVANTE AT MT. DORA, FCHR Order No. 13-016

Respondent.

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FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Bibi Qualander filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2011), alleging that Respondent Avante at Mt. Dora committed unlawful employment practices on the bases of Petitioner’s race, National Origin, and age by subjecting Petitioner to different terms and conditions of employment and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on June 8, 2012, the Executive Director issued a determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Orlando, Florida, on November 2, 2012, before Administrative Law Judge Lynne A. Quimby-Pennock.

Judge Quimby-Pennock issued a Recommended Order of dismissal, dated December 17, 2012.

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

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

We adopt the Administrative Law Judge’s findings of fact.

Filed February 26, 2013 8:12 AM Division of Administrative Hearings

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

In determining that Petitioner had failed to establish a prima facie case of race, National Origin, and age discrimination, the Administrative Law Judge concluded that Petitioner was not qualified for the position from which she was terminated.

Recommended Order, ¶ 26 and ¶ 29.

A Commission panel has noted, “For the purposes of establishing a prima facie case of discrimination, the Commission has accepted a showing that Petitioner is minimally qualified for the position.” Potasek v. The Florida State University, 18

F.A.L.R. 1952, at 1953 (FCHR 1995). Another Commission panel has indicated, “Petitioners being only minimally qualified...does not mean they failed to establish a

prima facie case. Only a total lack of qualification would prevent the establishment of a prima facie case.” Little, et al. v. Monsanto Company, 15 F.A.L.R. 621, at 622 (FCHR 1992). In a “termination” case, a Commission panel concluded that for the purpose of establishing a prima facie case of discrimination Petitioner demonstrated that “she was at least minimally qualified for the position in question by virtue of having been hired for

the position.” Kesselman v. Department of Transportation, 20 F.A.L.R. 166, at 169 (FCHR 1996); accord, Simpson v. Auto Nation / Courtesy Chevrolet, FCHR Order No. 11-088 (November 3, 2011), Hogg v. Arena Sports Cafe, FCHR Order No. 10-049 (May 25, 2010), Jones v. Spherion Staffing, FCHR Order No. 09-056 (July 1, 2009), Hamilton v. The Talking Phone Book, FCHR Order No. 08-002 (January 14, 2008), Ricks v. City of Gainesville, FCHR Order No. 05-018 (February 22, 2005), and Brown v. Volusia County School Board, FCHR Order No. 04-160 (December 23, 2004).

We further note that, while based on the foregoing we would conclude that

Petitioner in the instant case was “qualified” for the position in question for purposes of establishing a prima facie case, the conclusion of whether Petitioner was qualified for the position in question in the instant case is not dispositive of the case since the Administrative Law Judge further concluded that even if a prima facie case of

discrimination had been established Respondent “provided ample evidence that its actions were nondiscriminatory practices based on real concern for its business survival” and “there is no persuasive evidence that [Petitioner] was discriminated against by Respondent.” Recommended Order, ¶ 32 and ¶ 33.

We note that the Administrative Law Judge concluded that to establish a prima facie case of age discrimination in a termination case one of the elements that must be shown is that “the position was filled by a worker who was substantially younger than [Petitioner].” Recommended Order, ¶ 28.

While we agree that such a showing could be an element of a prima facie case, we note that Commission panels have long concluded that the Florida Civil Rights Act of 1992 and its predecessor law, the Human Rights Act of 1977, as amended, prohibited age discrimination in employment on the basis of any age “birth to death.” See Green v.

ATC/VANCOM Management, Inc., 20 F.A.L.R. 314 (1997), and Simms v. Niagara Lockport Industries, Inc., 8 F.A.L.R. 3588 (FCHR 1986). A Commission panel has indicated that one of the elements in determining a prima facie case of age discrimination is that Petitioner is treated differently than similarly situated individuals of a “different” age, as opposed to a “younger” age. See Musgrove v. Gator Human Services, c/o Tiger Success Center, et al., 22 F.A.L.R. 355, at 356 (FCHR 1999); accord Collins v. Volusia County Schools, FCHR Order No. 12-029 (June 27, 2012), Lombardi v. Dade County Circuit Court, FCHR Order No. 10-013 (February 16, 2010), Deschambault v. Town of Eatonville, FCHR Order No. 09-039 (May 12, 2009), and Boles v. Santa Rosa County

Sheriff’s Office, FCHR Order No. 08-013 (February 8, 2008). Cf., City of Hollywood, Florida v. Hogan, et al., 986 So. 2d 634 (4th DCA 2008).

With these comments, we adopt the Administrative Law Judge’s conclusions of

law.

Exceptions

Neither of the parties timely filed exceptions to the Administrative Law Judge’s Recommended Order.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 26th day of February , 2013. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Lizzette Romano; and

Commissioner Mario M. Valle

Filed this 26th day of February , 2013, in Tallahassee, Florida.

/s/ Violet Crawford, Clerk Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Bibi Qualander

14017 King Sago Court Orlando, FL 32828

Avante at Mt. Dora

c/o Jeffrey M. Goodz, Esq. Remer and Georges-Pierre, LLP

4901 Northwest 17th Way, Ste. 505 Fort Lauderdale, FL 33309

Lynne A. Quimby-Pennock, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 26th day of February , 2013.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 12-002323

Orders for Case No: 12-002323