STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

OWENS, EEOC Case No.

Petitioner, FCHR Case No. 2015-01434

v. DOAH No.

UNIVERSITY OF MIAMI , FCHR Order No. 17-045

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Kizzy Owens filed a complaint of discrimination pursuant to the Florida Civil Rights Act of Sections 760.01 - Florida Statutes alleging that Respondent University of Miami committed unlawful practices on the bases of Petitioner's race (Black), sex (female) and national origin (Haitian), and on the basis of retaliation, by harassing Petitioner, by creating a hostile work environment, by failing to promote Petitioner and by constructively discharging Petitioner.

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

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 video teleconference at sites in Miami and Tallahassee, Florida, on January 24, before Administrative Law Judge John G. Van Laningham.

Judge Van Laningham issued a Recommended Order of dismissal, dated April

2017.

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

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 June 15, 2017 12:19 PM Division of Administrative Hearings

FCHR Order No. 17-045

Page 2

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 note that the Administrative Law Judge appears to conclude that Respondent's failure to promote Petitioner to the Executive Assistant position for which she applied was not an "adverse employment action" for purposes of determining whether a prima facie case of discrimination was established. See Recommended Order, 24.

We disagree.

In a case in which there are allegations of a discriminatory failure to promote, the actual failure to promote is an "adverse employment action." See, e.g., Williams v.

Escambia County School District, DOAH Case No. Recommended Order, 38 (January 31,

Nevertheless, this does not affect the outcome of the case since the Administrative Law Judge also concluded that a prima facie case of discrimination was not established in this matter because there was no showing that similarly-situated employees outside Petitioner's protected classes were treated more favorably than Petitioner. See Recommended Order, 26 through 28.

With this comment, we adopt the Administrative Law Judge's conclusions of law.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge's Recommended Order.

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

FOR THE FLORIDA COMMISSION RELATIONS:

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Daniel; and

Commissioner Sandra Turner

FCHR Order No. Page 3

Filed this day 2017, in Tallahassee, Florida.,

rf

Clerk

on Human Relations

4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

Owens

20335 N.W. Court

Miami Gardens, FL 33056

University of Miami

c/o Eric A. Hernandez, Esq.

Wallen Hernandez Lee Martinez, LLP 255 Aragon Ave., Ste. 200

Coral Gables, FL

John G. Van Laningham, Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

HEREBY CERTIFY that a the foregoing has been mailed to the above listed addressees this \ 3 day of

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 16-004117

Orders for Case No: 16-004117