STATE OF FLORIDA COMMISSION ON HUMA N RELATIONS

THOMAS HARRIS, EEOC No.

Petitioner, FCHR Case No.

v. DOA H No. 16-2166

BREVARD COUNTY SHERIFF'S DEPARTMENT,

FCHR Order No. 16-063

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Thomas Harris filed a complaint of discrimination pursuant to the Florida Civil Rights Act o f 1992, Sections 760.01 - Florida Statutes (2014), alleging that Respondent Brevard County Department committed unlawful employment practices on the basis o f Petitioner's race (African American) and on the basis of retaliation for having filed an earlier discrimination complaint, by subjecting Petitioner to different and conditions of employment, by harassing Petitioner, by denying Petitioner promotions and by constructively discharging Petitioner.

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

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 o f a formal proceeding.

A n evidentiary hearing was held in Titusville, Florida, on June 27, before Administrative Law Judge J. D. Parrish.

Judge Parrish issued a Recommended Order of dismissal, dated September

2016.

The Commission panel designated below considered the record o f this matter and

determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge's findings o f fact to be supported by competent substantial evidence.

We adopt the Administrative Law Judge's findings o f fact.

Filed December 8, 2016 2:02 PM Division of Administrative Hearings

Conclusions o f 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 o f law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order with the Division o f Administrative Hearings on or about September

We note that while Petitioner is represented by counsel in this matter it appears that Petitioner filed exceptions to the Recommended Order, himself.

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 Florida Statutes see, also, Taylor v. Universal Studios. FCHR Order No. 14-007 (March 26, 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 o f 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 o f the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility o f 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 o f Children and Family Services,

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

F.A.L.R. at (FCHR Barr v. Columbia Regional Medical Center. 22 F.A.L.R. at (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 supra.

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

It is also unclear whether Petitioner served Respondent with the exceptions document as there is no such indication on the document. See Admin. Code 28-

requiring a party filing a document to serve all other parties with the document and include a certificate o f such service on the document.

Petitioner's exceptions are rejected.

Dismissal

The Petition for Relief and Complaint o f Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court o f Appeal must receive notice o f appeal within 30 days of the date this Order is filed with the Clerk o f the Commission. Explanation o f the right to appeal is found in Section Florida Statutes, and in the Florida Rules o f Appellate Procedure

DONE AN D ORDERED this J? day o f .

FOR THE FLORIDA COMMISSION ON HUMA N RELATIONS:

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

Commissioner Gilbert M . Singer

Filed this day of

in Tallahassee, Florida.

2016,

Clerk

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

(850) 488-7082

Copies furnished to:

Thomas Harris

c/o Richard Manzo, Esq. The Manzo Law

Post Office Box 599 Titusville, FL 32781

Brevard County Department

c/o Marc A. Esq. c/o Wayne L. Helsby, Esq. Allen, Norton & Blue, P.A. 1477 West Fairbanks Ave., Ste.

Winter Park, FL 32789

J. D. Parrish, Administrative Law Judge, DOA H James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy; foregoing has been mailed to the above listed addressees this day o f 2016.

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 16-002166

Orders for Case No: 16-002166