STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JAMEY M . EEOC No. 15D201300620

Petitioner, FCHR Case No.

v. No. 14-0880

REMEDY INTELLIGENCE STAFFING, FCHR Order No. 15-014

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner M . Favillo filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes (2013), alleging that Respondent Remedy Intelligence Staffing committed unlawful employment practices on the basis of Petitioner's disability by failing to allow Petitioner to work light duty until stitches were removed, on the basis of Petitioner's race (white) by harassing Petitioner and on the bases of Petitioner's race and retaliation by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on February 7, 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 Panama City, Florida, on October before Administrative Law Judge Diane

Judge Cleavinger issued a Order of dismissal, dated December

2014.

The Commission panel designated below considered the record of this matter

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 March 12, 2015 2:56 PM Division of Administrative Hearings

Conclusions of Law

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

We adopt the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order on or about January

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, "The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Section 120.57(l)(k), Florida Statutes (2014); see, also, Taylor v. Universal Studios, FCHR Order No. (March 26, McNeil v. HealthPort Technologies, FCHR Order No. 12-026 (June 27, 2012) and Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner's exceptions document suggests that it does not comply with this statutory provision.

It can be said, generally, that Petitioner excepts to the Administrative Law Judge's finding that no unlawful employment practice occurred in this matter, and also takes issue with the credibility of Respondent's witness.

The Commission has stated, "It is well settled that it is the Administrative Law Judge's function 'to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. I f the evidence presented supports two inconsistent findings, it is the Administrative Law Judge's role to decide between them.' v. Department of Children and Family Services,

F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9

F.A.L.R. 2168, 2171 (FCHR 1986)." Barr v. Columbia Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. (December 6, 2005), Eaves v.

Central Florida Portfolio, LLC, FCHR Order No. (March and Taylor, supra.

In addition, it has been stated, "The ultimate question of the existence of discrimination is a question of fact." Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 1 s t DCA 1991). Accord, v. Bay County Board of County Commissioners, FCHR Order No. (March Eaves, supra, and Taylor, supra.

Finally, Petitioner's exceptions document appears to attempt to introduce evidence that was not received by the Administrative Law Judge. The Commission has declined to accept exceptions that attempt to insert into the record evidence that was not received by the Administrative Law Judge. See Porter v. Imperial Embassy Condominium Four, Inc., FCHR Order No. 12-020 (May 16, 2012), and cases cited therein.

Petitioner's exceptions are

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 Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this of , 2015. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M . Singer, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner Tony Jenkins

Filed this of , 2015, in Tallahassee, Florida.

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

Copies furnished to:

M . Favillo

700 Transmitter Road, Lot 35 Panama City, FL 32401

Remedy Intelligence Staffing c/o Collin A Thakker, Esq.

Jackson Lewis,

Riverside Avenue, Suite 902 Jacksonville, FL 32202

Diane Cleavinger, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copyof the foregoing has been mailed to the above

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 14-000880

Orders for Case No: 14-000880