STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TENESIA WHITESIDE,

vs.

Petitioner,

Case No. 13-1504

EXCEL BUILDING SERVICES,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings (Division) heard this case, as noticed, on July 25, 2013, at sites in Lakeland and Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Angela Mason-Reimer, Esquire

Mason-Reimer, P.A. Suite 300

8875 Hidden River Parkway Tampa, Florida 33637

STATEMENT OF THE ISSUE

Did Respondent, Excel Building Services (Excel), discharge Petitioner, Tenesia Whiteside, on account of her sex in violation of chapter 760, Florida Statutes (2012)?1/

PRELIMINARY STATEMENT

On November 9, 2012, Ms. Whiteside filed an Employment Complaint of Discrimination alleging that she was harassed, threatened, and ultimately discharged because she refused to have a relationship with her supervisor. The Florida Commission on Human Relations (Commission) issued a No Cause Determination.

Ms. Whiteside filed a Petition for Relief. On April 25, 2013, the Commission referred the matter to the Division for conduct of the requested hearing. The remainder of this case's procedural history is contained in the following Findings of Fact.

FINDINGS OF FACT

1. The hearing was set for June 18, 2013. The hearing convened as scheduled.

2. Neither party appeared. Counsel for Excel filed a Notice of Appearance and Motion to Continue Hearing on June 18, 2013, alleging that Excel was unaware of the hearing, although neither the Notice of Hearing or the Amended Notice of Hearing mailed to Excel's representative had been returned. The administrative assistant of the undersigned contacted

   Ms. Whiteside by telephone. Ms. Whiteside reported that she was unable to locate the address for the hearing location.

3. The undersigned continued the hearing until July 25, 2013.

   
   

4. On July 18, 2013, the undersigned conducted a

   
   

   pre-hearing conference in this matter. Ms. Whiteside and counsel for Excel participated in the hearing. The undersigned reminded both parties of the duty to exchange exhibits and witness lists and pre-file exhibits with the Clerk of the Division and of the deadline for these actions. The undersigned also reminded the parties of the importance of attending the hearing on time.

5. The hearing convened as scheduled at 9:00 a.m. on July 25, 2013. Counsel for Excel and Excel's representative appeared. Excel had previously timely filed and served its witness and exhibit list. Ms. Whiteside did not appear or contact the office of the undersigned.

6. The hearing was recessed until 9:25 a.m. When the hearing re-convened Ms. Whiteside had not appeared or contacted the office of the undersigned.

7. Ms. Whiteside presented no evidence. Excel presented no evidence. The hearing was adjourned.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to sections 120.569 and 120.57(1), Florida Statutes.

9. Section 760.11(7) permits a party who receives a no cause determination to request a formal administrative hearing before the Division. "If the administrative law judge finds that

   
   

   a violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate recommended order to the Commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back-pay." Id.

10. Ms. Whiteside claims that Excel terminated her because of sex. Section 760.10(1)(a) prohibits discharging an employee on account of her sex.

11. Ms. Whiteside must prove her claim by a preponderance of the evidence. Dep't. of Banking & Fin. Inv. Prot. v. Osborne

    Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996).

    
    

12. An employee may prove a discrimination claim by direct evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Direct evidence of discrimination is evidence that, if believed, proves the existence of a fact without inference or presumption. Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989).

13. An employee may also prove a claim of discrimination by circumstantial evidence establishing that similarly-situated employees, who were not in her protected class, were treated more favorably than she was. Wilson v. B/E Aerospace, Inc., supra, at 1087.

14. Ms. Whiteside has not presented direct or circumstantial evidence tending to prove that she was

discriminated against on account of her sex. Consequently she has not proven her claim by the preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Tenesia Whiteside.

DONE AND ENTERED this 26th day of July, 2013, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2013.

ENDNOTE

1/ All references to the Florida Statutes are to the 2012 edition unless otherwise noted.

COPIES FURNISHED:

Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Tenesia Whiteside Apartment 2

1010 State Road 60 East Lake Wales, Florida 33853

Angela Mason-Reimer, Esquire Mason-Reimer, P.A.

Suite 300

8875 Hidden River Parkway Tampa, Florida 33637

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: 13-001504

Orders for Case No: 13-001504