STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

PAUL INACIO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2709

)

GULF POWER COMPANY/CRIST )

ELECTRIC, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 21, 1991. The Division of Administrative Hearings received the hearing transcript on March 12, 1991.

The parties filed proposed recommended orders on March 27 and 29, 1991.

The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: John Barry Kelly, II, Esquire

Ray, Kievit & Kelly

15 West Main Street Pensacola, Florida 32501

For Respondent: William E. Powers, Jr., Esquire

Powers & Quashnick Post Office Box 12186

Tallahassee, Florida 32317-2186 STATEMENT OF THE ISSUE

Whether respondent created or condoned an environment at its Crist Electric Generating Plant which amounted to a discriminatory term of employment, significantly affecting petitioner adversely on account of his national origin?

PRELIMINARY STATEMENT

After petitioner complained, in June of 1989, that respondent had discriminated against him in violation of Section 760.01 et seq., Florida Statutes (1989), the Florida Commission on Human Relations (FCHR) investigated. The investigation eventuated in a "DETERMINATION: NO CAUSE" dated April 3, 1990, whereupon petitioner filed a petition for relief from an unlawful employment practice, in accordance with Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Department of Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), complaining that "the investigation could have been more thorough and not conducted by phone."

The petition alleges name calling and "harassment incidents" and seeks an "order prohibiting the unlawful employment practice and granting such affirmative relief as may be just and equitable." The FCHR referred the petition to the Division of Administrative Hearings for a de novo hearing. See Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

FINDINGS OF FACT

1. Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976.

   
   

2. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone.

   
   

3. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room

   . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on.

   
   

4. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28.

   
   

5. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472.

   
   

6. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back.

   
   

7. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse:

   
   

   I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself

   right then.

   
   

   T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room.

8. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin.

   
   

9. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26.

   
   

10. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop."

    
    

11. A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio."

    
    

12. Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it.

    
    

13. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159.

    
    

14. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname.

    T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240.

    
    

15. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484.

16. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment.

    
    

17. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id.

    
    

18. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1.

    
    

19. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No.

1. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove.

   
   

   1. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/

      
      

   2. Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee.

      
      

   3. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id.

      
      

   4. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak."

      T.202. Petitioner's work record is basically a very good one, although not perfect.

   5. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda.

      
      

   6. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order.

      
      

   7. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate.

      
      

   8. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437.

      
      

   9. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257-

263. Petitioner's safety record was "better than most." T.424.

1. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some

   . . . blacks as being niggers." T.135.

   
   

2. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it.

   T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.)

3. At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8.

   
   

4. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.

   
   

   CONCLUSIONS OF LAW

   
   

5. Since the FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

   
   

6. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year," Section 760.02(6), Florida Statutes (1989), to "fail or refuse to hire . . . or to otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . .

   . national origin." Section 760.10(1)(a), Florida Statutes (1989). Respondent is an employer for purposes of the Florida Human Relations Act.

   
   

7. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Inacio, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 685 F.2d 1355, 1359 (11th Cir. 1982). Howard Johnson Co. v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987).

   
   

8. Here, as in Rogers v. EEOC, 454 F.2d 284 (5th Cir. 1971) cert. denied,

   406 U.S. 957 (1972), a Hispanic employee has proven that his employer created and condoned "a working environment heavily charged with ethnic or racial discrimination." Id. at 138. That various supervisors or co-workers misidentified petitioner, who was born in Brazil, as Puerto Rican (or, in at least one instance, as Italian) does not diminish the fact of discrimination on account of ethnicity and national origin.

   
   

9. The United States Supreme Court cited the Rogers case with approval in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986):

   
   

   Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert.

   denied, 406 U.S. 957, 92 S.Ct. 2058, 32

   L.Ed.2d 343 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by

   giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment:

   "[T]he phrase 'terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within

   its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination One

   can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers . . . ." 454 F.2d at 238.

   Courts applied this principle to harassment based on race, e.g. Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub nom.

   Banta v. United States, 434 U.S. 819, 98 S.Ct.

   60, 54 L.Ed.2d 76 (1977); Gray v. Greyhound

   Lines, East 178 U.S.App.D.C. 91, 98, 545 F.2d

   169, 176 (1976), religion, e.g. Compston v.

   Borden, Inc., 424 F.Supp. 157 (SD Ohio 1976), religion, e.g. Compston v. Borden, Inc., 424 F.Supp. 157 (SD Ohio 1976), and national

   origin, e.g. Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (CA8 1977).

   
   

   477 U.S. at 65-66. Like Title VII, the Florida Human Relations Act forbids invidious discrimination "against any individual with respect to compensation, terms, conditions or privileges of employment." Section 760.10(1)(a), Florida Statutes (1989). The Court made clear that harassment should be viewed in this context, while offering the following caveat:

   
   

   Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F.2d at 904 (quoting same).

   
   

   477 U.S. at 676. Here petitioner proved much more than an occasional epithet inducing transitory "offensive feelings in an employee." Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). By "creating or condoning an environment at the workplace which significantly and adversely affects an employee because of his [national origin,] race or ethnicity, regardless of any other tangible job detriment," Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir. 1982), Gulf Power Company ran afoul of the Florida Human Relations Act, interpreted in

   consonance with Title VII decisions. Davis v. Monsanto Chemical Co., 858 F.2d

   345 (6th Cir. 1988); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 (11th Cir. 1987); Henson v. City of Dundee, 682 F.2d 897(11th Cir. 1982).

   
   

10. Not every incident proven by petitioner occurred within the 180 days next preceding the filing of his complaint with the Commission on June 12 or 22, 1989. But evidence of earlier incidents was relevant to show both the extent of the discriminatory environment that persisted during the jurisdictional period and the fairness of charging management with knowledge of co-employees' discriminatory acts.

    
    

11. In the Meritor Savings Bank case, the Supreme Court addressed the question of when an employer should be held accountable for acts of co- employees, saying:

    
    

    Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42

    U.S.C. Section 2000e(b), surely envinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency Section 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.

    
    

    477 U.S. at 72. Here supervisory personnel, including the maintenance superintendent, contributed to the discriminatory environment. See, e.g. Graves Trucking Inc. v. NLRB, 692 F.2d 470 (CA7 1982); NLRB v. Kaiser Agricultural Chemical, Division of Kaiser Aluminum & Chemical Corp., 473 F.2d 374, 384 (CA5 1973); Amalgated Clothing Workers of America v. NLRB, 124 U.S.App.D.C. 365, 377, 365 F.2d 898, 909 (1966).

    
    

12. Management was necessarily aware of harassment by co-workers such as that involving the use of the public address system and the bulletin board. See Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988); Henson v. City of Dundee, 682 F.2d 897(11th Cir. 1982); and Taylor v. Jones, 653 F.2d 1193, 1197-1199 (8th Cir. 1981) (holding employer liable for racially hostile working environment based on constructive knowledge.)

    
    

13. Petitioner seeks a commission order forbidding further unlawful discrimination against and harassment of him by respondent; and, as prevailing party, an award of attorney's fees and costs. The evidence established petitioner's entitlement to this relief, and the Commission should so order. Against the possibility that the parties will not be able to reach agreement as to the amount of fees or costs, jurisdiction is retained for the limited purpose of determining fees and costs.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

1. That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin.

   
   

2. That the FCHR award petitioner reasonable attorney's fees and costs.

DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.

ENDNOTES

1/ Not listed was Chris Lynch, a white man whose toolbox "had holes punched in it like a [.]22 rifle would have shot." Mr. Lynch's toolbox was punctured by a chipping hammer after the list was prepared. T.40. Sam Arnold, another white male employee whose name did not make the list, "had his locks glued and his toolbox trashed." T.138. Perhaps Mr. Arnold was not listed on Respondent's Exhibit No. 10 because the incident occurred before August (or June) of 1987.

law.

APPENDIX

Petitioner's proposed finding of fact No. 1 is properly a conclusion of Petitioner's proposed findings of fact Nos. 2 through 17 have been adopted,

in substance, insofar as material.

Respondent's proposed findings of fact Nos. 1, 6, 11, 16, 17, the first and

last sentence of No. 19, Nos. 21, 22, 26 and 29, have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 2, 3, 4, and 5 pertain to pleadings, motions and rulings, and do not recite facts proven.

Respondent's proposed findings of fact Nos. 7, 8, 9 and 10 pertain to subordinate matters.

With respect to respondent's proposed finding of fact No. 12, Haney's report is hearsay.

With respect to respondent's proposed findings of fact No. 13, the evidence did not show that anybody else had been sent here for such a mix-up.

With respect to respondent's proposed findings of fact Nos. 14, 15 and 30, the incidents postdated the filing of the complaint.

With respect to respondent's proposed finding of fact No. 18, testimony that respondent said, "I put my Julio on it," has not been credited. Many more than two supervisors referred to petitioner as "Julio." Nothing in the evidence suggests that any of the supervisors who called petitioner Julio knew petitioner's brother or petitioner's brother's name before the present proceedings began.

The second, third and fourth sentence of respondent's proposed finding of fact No. 19, and respondent's proposed findings of fact Nos. 23, 31, 32, 33, 34,

35 and 36 are rejected in their entirety as unsupported by the evidence.

With respect to respondent's proposed finding of fact No. 20, there were more than two occasions; petitioner's surname and mispronunciation of it do relate to his national origin; and supervisory personnel took no steps to prevent or punish the behavior.

With respect to respondent's proposed finding of fact No. 24, the memorandum reflects a threat of termination only for destruction of property.

With respect to respondent's proposed finding of fact No. 25, the evidence showed a disparity in the frequency and severity of such incidents as regards petitioner compared to incidents involving native-born men in respondent's employ. The evidence did not show that petitioner "never stated to any supervisor that he believed that vandalism was directed against him because of his national origin."

With respect to respondent's proposed findings of fact Nos. 27 and 28, the nickname "Julio" "involved petitioner's national origin or ethnic background." The evidence showed that petitioner did not take the picture to a supervisor, but did not show that he left it on display.

COPIES FURNISHED:

John Barry Kelly, II, Esquire Ray, Kievit & Kelly

15 West Main Street Pensacola, FL 32501

William E. Powers, Jr., Esquire Powers & Fuashnick

Post Office Box 12186 Tallahassee, FL 32317-2186

Ronald M. McElrath, Executive Director Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002709

Orders for Case No: 90-002709