STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MARCELLA TAGGART, EEOC No.

Petitioner, FCHR Case No. 2015-01314

v. DOAH No. 16-0147

PUBLIX SUPER MARKETS, INC., FCHR Order No. 16-040

Respondent.

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Taggart filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes

alleging that Respondent Publix Super Markets, Inc., committed unlawful employment practices on the bases of Petitioner's race (African American), color, sex (female), age (DOB: 8-25-63) and on the basis of retaliation. The complaint alleges that Petitioner was unlawfully disciplined on the bases of her race and sex, and that in retaliation for complaining about the alleged discrimination Respondent took away Petitioner's responsibilities and powers as a "team lead" and terminated her from employment. In addition, Petitioner alleged that Respondent engaged in discriminatory hiring practices "whereby they are disproportionately hiring white individuals under 40 years of age, and terminating African Americans and employees over 40 years of age."

The allegations set forth in the complaint were investigated, and, on December 7, the Executive Director issued a 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 Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held by video teleconference at sites in Lakeland and Tallahassee, Florida, on March 22, before Administrative Law Judge William F. Quattlebaum.

Judge Quattlebaum issued a Recommended Order of dismissal, dated May 24,

2016.

The Commission panel designated below considered the record of this matter and

determined the action to be taken on the Recommended Order.

Filed August 4, 2016 3:09 PM Division of Administrative Hearings

Findings of Fact

We 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.

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, "Petitioner's Exceptions to Recommended Order."

Respondent subsequently filed, "Response of Respondent Publix Super Markets, Inc. to Petitioner's Exceptions to Proposed Final Order."

A review of this filing suggests that Petitioner excepts to the following Recommended Order "findings of fact" paragraph numbers: 3, 5, 6, and 33.

In each instance, Petitioner excepts to inferences drawn from the evidence presented and / or credibility determinations made by the Administrative Law Judge.

The Administrative Procedure Act establishes the extent to which the Commission can modify or reject a finding of fact or conclusion of law contained in a Recommended Order. It states, "The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and the interpretation of administrative rules over which it has substantive or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify 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 upon competent substantial evidence or that the proceedings on

which the findings were based did not comply with the essential requirements of law." Section Florida Statutes

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,

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. at (FCHR Accord, Bowles v. County

Hospital Corporation. FCHR Order (December 6, 2005), Eaves v.

Central Florida Portfolio. LLC. FCHR Order No. -029 (March and Taylor v. Universal Studios, FCHR Order No. 14-007 (March 26, 2014).

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 at 1209 1991). Accord, v. Bay County Board of County Commissioners. FCHR Order No. (March Eaves, 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 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 day of

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Derick Daniel; and

Commissioner Donna

Filed this day of in Tallahassee, Florida.

Clerk

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

(850) 488-7082

Copies furnished to:

Marcella Taggart

c/o Katherine Heffner, Esq. Council on American-Islamic

Relations - Florida 8076 North 56t h Street Tampa, FL

Publix Super Markets, Inc. c/o Edmund J. McKenna, Esq. Ogletree, Deakins, Nash,

& Stewart, P.C.

North Tampa Street, Ste. 3600 Tampa, FL 33602

William F. Quattlebaum, 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

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 16-000147

Orders for Case No: 16-000147