STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JACQUELINE EEOC No.

Petitioner. FCHR Case No.

v. DOAH No. 15-7002

UNIVERSITY OF WEST FLORIDA, FCHR Order No. 16-034

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Jacqueline Pinkard filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections - Florida Statutes

alleging that Respondent University of West Florida committed employment practices on the basis of Petitioner's race (Black) and on the basis of retaliation by giving Petitioner a poor performance evaluation to deny an equitable pay increase and to deny position reclassification or promotional opportunity. Petitioner further alleges that Respondent unlawfully created a new position with "preferred" qualifications to a preselected employee / applicant.

The allegations set forth in the complaint were investigated, and, on November 5, 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

An evidentiary hearing was held in Pensacola, Florida, on February 9, before Administrative Law Judge James H. Peterson, III.

Judge Peterson issued a Recommended Order of dismissal, dated May 3,

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. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the

Filed June 24, 2016 9:25 AM Division of Administrative Hearings

Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September

Gantz, et al. v. Zion's Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. (June 6, and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007

(January 2008).

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

Conclusions of Law

We the 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, "Written Exceptions to Recommended Order," received by the Commission on May

The exceptions document sets out exceptions to the following Recommended Order paragraphs: 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,

33, 34, 35, 37, 38, 39, 40, 41, 43, 44, 45, 48, 49, 51, 53, 58, 59, 60, 61, 62, 63, 64, 65,

66, 68, 69, 92, 94, 95,97, 98, 101, 102, 107, 108, 110, 116, 117, 123, 124, 125, 129, 132,

133, 134, 139, 146, 150, 151, 152, 157, 158, 162, 163, 165, 168, 169, 170, 178, 181,

183, 191, and 193.

The exceptions to the following Recommended Order paragraphs take issue with inferences drawn by the Administrative Law Judge from the evidence presented: 29, 32, 35, 38, 40, 53, 94, 101, 102, 117, 123, 125, 133, 152, 157, 158 and 181.

The exceptions to the following Recommended Order paragraphs take issue with credibility determinations made by the Administrative Law Judge: 32, 40 and 59.

The remaining exceptions set out explanation or comment about the facts found by the Administrative Law Judge.

As indicated, above, no transcript of the proceeding before the Administrative Law Judge was filed with the Commission.

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. See, e.g., Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007), Herring v. Department of Corrections, FCHR Order No. 12-004 (February 21, 2012) and v. Lee Wesley Restaurants,

Burger King, FCHR Order No. 14-041 (October 9, 2014).

With regard tofindingsof fact set out in Recommended Orders, the Administrative Procedure Act states, "The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based competent substantial evidence or that the proceedings on which thefindingswere based not comply the essential requirements of law [emphasis added]." Section 120.57(1)(1), Florida Statutes As indicated, above, in the absence of a transcript of the proceeding before the Administrative Law Judge, the Order is the only evidence for the Commission to consider. See, National Inc., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 2005), Coleman, supra, and Gantz, supra.

Further, 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. If 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, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at (FCHR Barr v. Columbia Regional Medical Center, 22 F.A.L.R. at (FCHR Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. (December 6, 2005) and Eaves v.

Central Florida Portfolio, LLC, FCHR No. 11-029 (March 17, 2011).

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.

586 So. 2d 1205, at 1209 (Fla. DCA 1991). Accord, Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010) and supra.

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 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED thiiss of

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Tony Jenkins; and

Commissioner Jay Pichard

Filed this day of

in Tallahassee, Florida.

2016,

Clerk J

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

Copies furnished to:

Jacqueline Pinkard Hunters Creek Drive

Pensacola, FL 32533

University of West Florida c/o Anita Schonberger, Esq. Deputy General Counsel

University Parkway, Pensacola, FL 32514

James H. Peterson, III, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above listed addressees this day of ( ,

By: _ Clerk of the

Florida Commission on Human Relations

Docket for Case No: 15-007002

Orders for Case No: 15-007002