STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

DAVID E. MCDONALD, EEOC No.

Petitioner, FCHR Case No.

v. No. 15-0216

PRESENILIS CARE, FCHR Order No. 15-045

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR RELIE F FROM AN UNLAWFUL EMPLOYMENT

Preliminary Matters

Petitioner David E. McDonald filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes (2014), alleging that Respondent Medical Care committed an unlawful employment practice on the bases of Petitioner's age (DOB: 7-3-34) and disability by limiting Petitioner's long-term disability benefits to twelve months.

The allegations set forth in the complaint were investigated, and, on December

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 by telephone conference call in Tallahassee, Florida, on April 16, before Administrative Law Judge John D. C. Newton, II.

Judge Newton issued a Recommended Order of dismissal, dated May

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

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et 527 So. 2d 894, at 897, 898 5th DCA 1988). Accord, Coleman v.

Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10, Gantz, et al. v. Zion's Hope. Inc., d/b/a Holy Land Experience, FCHR Order No.

Filed July 31, 2015 11:05 AM Division of Administrative Hearings

(June 6, and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008).

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

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 in a document entitled, "Notice of Written Exceptions to Recommended Order," received by the Commission on May 20,

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. 14-007 (March 26, 2014), McNeil v. HealthPort Technologies, FCHR Order No. (June 27, 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.

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.' Beckton v. Department of Children and Family Services,

F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin 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. -029 (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 A Accord, v. Bay County Board of County Commissioners. FCHR Order No. 10-027 (March 17,

supra, and Taylor, supra.

Petitioner's exceptions are rejected.

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 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

,2015.

Commissioner Michael Keller, Panel Chairperson; Commissioner Derick Daniel; and

Commissioner Sandra Turner

in Tallahassee, Florida.

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

Copies furnished to:

E. McDonald Sunrise Drive

Sebring, FL 33872

Fresenius Medical Care

c/o Richard N. Margulies, Esq. c/o B. Tyler White, Esq.

Jackson Lewis, P.C.

501 Riverside Avenue, Suite 902

Jacksonville, FL 32202

John D. C. Newton, II , Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

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

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 15-000216

Orders for Case No: 15-000216