STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MELVIN BLUM, )
)
Petitioner, )
)
vs. ) CASE NO. 92-7525
) NATIONAL ENQUIRER, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, through its duly designated hearing officer, Michael M. Parrish, held a formal hearing in the above-styled case on April 25 and 26, 1996, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Mr. Melvin Blum
Post Office Box 968
Boca Raton, Florida 33429
For Respondent: Mark B. Roberts, Esquire
Steel Hector and Davis LLP 1900 Phillips Point West 777 South Flagler Drive
West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES
The Petitioner has alleged that the Respondent has discriminated against him on the basis of his alleged hearing impairment when the Respondent failed to rehire him. The issue in this proceeding is whether the Respondent, by failing to rehire the Petitioner, committed an unlawful employment practice and, if so, to what remedies is the Petitioner entitled.
PRELIMINARY STATEMENT
On March 26, 1992, the Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations. On August 27, 1992, the Executive Director of the Florida Commission on Human Relations issued a "no cause" determination, and on December 9, 1992, a redetermination was issued in which the Executive Director concluded there was "no reasonable cause to believe that an unlawful employment practice occurred." On December 14, 1992, the Petitioner filed a Petition For Relief. On December 23, 1992, the Petition For Relief was referred to the Division of Administrative Hearings for assignment to a Hearing Officer for "all necessary proceedings" and a Recommended Order.
This case went through an unusually long prehearing phase during which the parties attempted to clarify and narrow the issues and conducted discovery. For
reasons memorialized in the record, it was necessary to continue and reschedule several hearing dates. Eventually, a formal hearing was conducted on April 25 and 26, 1996.
At the formal evidentiary hearing held on April 25 and 26, 1996, the Petitioner testified on his own behalf and presented the additional live testimony of Iain Calder, Malcolm Hayes, and Susan Napolitano. Furthermore, Petitioner offered the testimony of Lorraine O'Neal and William Condie by way of deposition transcripts, which were admitted as Petitioner Exhibits 12 and 18, respectively. Petitioner's Exhibits 1-14, 18, and 20 were received in evidence; Petitioner's Exhibits 15-17 and 19 are included in the record as rejected exhibits. (Objections to the rejected exhibits were sustained.)
The Respondent presented Iain Calder as its only witness during its case- in-chief. Respondent's Exhibits 1 and 2 were received in evidence. At the conclusion of the formal hearing the parties were allowed 30 days from the filing of the transcript within which to file their respective proposed recommended orders.
The hearing transcript was filed on June 3, 1996. On June 27, 1996, the Petitioner filed a document titled "Recommended Order" along with an undated cover letter and several attachments to the document. The document titled "Recommended Order" has been treated as the Petitioner's proposed recommended order. That document is addressed in greater detail in the Appendix to this Recommended Order.
On July 3, 1996, the Respondent filed a proposed recommended order containing proposed findings of fact and conclusions of law.
By way of introduction to the findings of fact which follow, it is noted that on most disputed factual issues in this case, I have found the Respondent's version to be more persuasive than the version put forth by the Petitioner. 1/ All of the findings of fact proposed by the Respondent under the caption "Findings of Fact" are supported by persuasive competent substantial evidence and are consistent with the greater weight of the evidence. Accordingly, all of those proposed findings of fact are accepted and have been incorporated into the findings of fact in this Recommended Order, with a few minor editorial changes.
FINDINGS OF FACT
The Petitioner, Melvin Blum ("Mr. Blum"), was employed by the Respondent National Enquirer, Inc. ("National Enquirer"), 2/ from 1962 until his voluntary resignation in June 1980.
The National Enquirer publishes a weekly tabloid newspaper in Palm Beach County, Florida.
Since joining the National Enquirer, Iain Calder ("Mr. Calder") has held various positions as an employee and officer of the publication and its affiliated companies. Mr. Calder first joined the Enquirer in 1964 as London Bureau Chief. In 1967, he came to the United States as articles editor, a position he held until the early 1970's. In due course, he was promoted to senior articles editor, executive editor, editorial director, and then editor in 1975. In 1976, Mr. Calder became President of the National Enquirer. After the death of the owner, Mr. Pope, in 1988, Mr. Calder became Chairman of the company in order to sell the publication. After new owners acquired the publication, Mr. Calder became editor-in-chief of the publication and executive vice-
president of the parent company. In December 1995, Mr. Calder stepped down as editor-in-chief and president and assumed the position of editor emeritus.
Mr. Calder has known Mr. Blum for close to 30 years. Mr. Calder was familiar with Mr. Blum's work. When Mr. Calder was editorial director and then editor, Mr. Blum indirectly reported to him through his department head. Additionally, Mr. Calder would occasionally sit in as managing editor to learn the business of layouts. During those occasions, he would directly supervise Mr. Blum. While not close friends, Mr. Calder and Mr. Blum occasionally socialized outside of work.
In Mr. Calder's view, while Mr. Blum was talented in using photographs, he had problems with headlines and with writing.
Malcolm Hayes ("Mr. Hayes") first joined the National Enquirer in 1973. On his first stint at the publication, he held the positions of deskman, assistant editor, associate editor, and then managing editor. Mr. Hayes left the National Enquirer in 1986. Upon his return in 1989, he served in the position of assistant managing editor and then assumed his current position of managing editor upon the death of the prior managing editor, Nat Chrzan.
Mr. Hayes first met Mr. Blum when he joined the National Enquirer in 1973. They worked together for seven years. While working together, Mr. Hayes had an opportunity to observe Mr. Blum's work. It was Mr. Hayes' general impression that while Mr. Blum was efficient, thorough, and had good layout skills, he had problems with words and headlines.
Mr. Blum has had a hearing impairment since he was 17 years old. During the 18 years Mr. Blum worked at the National Enquirer, he wore a hearing aid. Both Mr. Calder and Mr. Hayes knew Mr. Blum wore a hearing aid while he worked at the National Enquirer. Neither Mr. Calder nor Mr. Hayes felt it was an impediment to his work. It was never considered a negative factor. Mr. Calder believed he communicated well with Mr. Blum while he worked at the publication. Mr. Calder did not view it as limiting Mr. Blum's ability to perform his job in any way.
In July of 1990, Mr. Blum wrote to Mr. Calder inquiring about the possibility of returning to work at the National Enquirer. Mr. Calder wrote a cordial letter in reply indicating that there were no openings for the position of a deskman. Additional letters were exchanged between Mr. Blum and Mr. Calder. In a February 1, 1991, letter, Mr. Calder wrote to Mr. Blum informing him there were still no available positions on the "desk." He further indicated that should a position become available, it would be the decision of the Managing Editor whether to rehire him. While Mr. Calder had the authority to hire and always retained veto power, it was his philosophy and policy not to mandate that his department heads hire a particular individual.
Upon the resignation of a key member of Mr. Hayes' staff, Mr. Hayes attempted to fill a position on the "desk" with an individual who had in addition to "desk" experience, desktop publishing skills and management potential. The paper was moving into computers and was looking for someone with those skills. Additionally, Mr. Hayes' deputy at the time indicated that he did not want to serve in that role and fill-in for Mr. Hayes in his absence.
As the term is used at the National Enquirer, a deskman is an individual who is a layout editor and writes headlines, writes captions, edits copy, and basically puts the pages together.
Two members of Mr. Hayes' staff recommended William Condie ("Mr. Condie") for the position. Both individuals had worked with Mr. Condie when they were employed by the New York Post. Mr. Condie was at the Post at the time he was recruited. The National Enquirer had previously been very successful in recruiting newspaper people from the New York Post.
Mr. Condie met both the experience requirements and the skill requirements that the National Enquirer was seeking. Mr. Condie had been involved in "desk work" for thirty years. He had served in various "desk" capacities at the London Daily Express, New York Daily News, and New York Post. Mr. Condie had a lot of experience in laying out pages. He was also a very good headline writer with good word skills.
In addition to his extensive desk experience, Condie had worked with computers both at the New York Daily News and the New York Post. He also had a personal computer at home and was somewhat of a computer buff.
Mr. Condie's background also reflected management experience. Prior to coming to the National Enquirer, Mr. Condie held the position of Night Managing Editor at the New York Post; the Post was considered one of the premier tabloids in the country. Mr. Condie was responsible for supervising all aspects of production of the newspaper after the first edition. He had performed in other management positions as well. Mr. Calder had known Mr. Condie for more than 30 years. Mr. Calder had an opportunity to work with Mr. Condie when Mr. Condie had previously worked at the National Enquirer. At one point in time early in their careers, Mr. Calder had reported to Mr. Condie.
Based on his experience and skills, Mr. Condie was invited to the National Enquirer for a try-out in May 1991. At the end of the trial period, Mr. Condie was offered a position. The decision to hire Mr. Condie was made on or before June 5, 1991. Mr. Hayes made the decision to hire Mr. Condie which was approved by Mr. Calder. Mr. Condie began his full-time employment at the National Enquirer on July 8, 1991.
The National Enquirer hired Mr. Condie on the basis of his qualifications.
Since Mr. Condie was hired, no other positions on the "desk" became available at the National Enquirer.
Neither Mr. Hayes nor Mr. Calder viewed the hiring process as a competition between Mr. Condie and Mr. Blum. Had Mr. Condie never been a candidate, Mr. Blum would not have been selected for the position. Mr. Blum lacked the qualifications that the National Enquirer was looking for in a candidate.
Both Mr. Hayes and Mr. Calder were familiar with Mr. Blum's abilities and limitations. Mr. Hayes had worked with Mr. Blum for seven years. During that time, Mr. Hayes had an opportunity to observe Mr. Blum's professional work. While he felt Blum was efficient and thorough and had good layout skills, he felt Mr. Blum had problems with words and headlines. The nature of the publication had also changed since Mr. Blum had worked at the National Enquirer.
Mr. Blum also did not have the management experience that Mr. Hayes was looking for in a candidate. During his entire time at the National Enquirer, Mr. Blum was never in a management position. Since leaving the
National Enquirer, Mr. Blum's only managerial experience was at Senior Power, a free newspaper he started with another individual. While Mr. Blum was responsible for all business decisions, editorial decisions, and finances at Senior Power, it was a naive business concept and a financial failure. Given their personal experience with Mr. Blum, both Mr. Hayes and Mr. Calder felt that his personality was not conducive to supervising people. Additionally, Mr. Blum had no desktop computer experience at a major tabloid.
Given their familiarity with Mr. Blum's experience and skills, neither Mr. Hayes nor Mr. Calder considered Mr. Blum a viable candidate for the position for which Mr. Condie was hired.
Mr. Blum has no written evidence that the National Enquirer discriminated against him on the basis of his hearing. Mr. Blum knows of no statements made by Mr. Hayes, Mr. Calder, or anyone else evidencing discrimination against him on the basis of his hearing. In fact, Mr. Blum believes he was not rehired because of a grudge.
Mr. Blum's hearing impairment played no role in the National Enquirer's decision not to rehire him.
Mr. Blum filed his Charge of Discrimination on March 26, 1992.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Respondent contends that this case should be dismissed as untimely. In this regard the Respondent asserts that the complaint in this case was filed more than 180 days from the date of the alleged violation. The statutory provisions applicable to the issue of the timeliness of the complaint in this case are found at Section 760.10(10), Florida Statutes (1991), 3/
which reads as follows, in pertinent part:
(10) Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged violation, naming the employer . . . responsible for the violation and describing the violation.
The alleged violation in this case was the Respondent's act of hiring Mr. Condie instead of hiring the Petitioner. The decision to hire Mr. Condie was made on or before June 5, 1991. Mr. Condie began his full-time employment at the National Enquirer on July 8, 1991. The date on which Mr. Condie began his full-time employment is the latest date on which the alleged violation could be said to have occurred. 4/ The Petitioner's charge of discrimination was filed with the Florida Commission on Human Relations on March 26, 1992. The date on which the Petitioner filed his charge of discrimination was more than 180 days after the date of the alleged violation. Accordingly, the Petitioner's claim in this case is time-barred. See Henderson v. Hovnanian Enterprises, Inc., 884 F.Supp. 499, 502 (S.D. Fla. 1995); Farancz v. St. Mary's Hosp., Inc., 585 So.2d 1151 (Fla. 4th DCA 1991); Kourtis v. Eastern Airlines, 409 So.2d 139, 140 (Fla. 4th DCA 1982).
In reaching this conclusion I have not overlooked the Petitioner's arguments to the effect that the alleged violation occurred as late as October 22, 1991. In his Charge of Discrimination filed on March 26, 1992, the Petitioner asserts, among other things: "As late as October 22, 1991, I was denied rehire by Respondent." However, the proof in this case is otherwise, because the only relevant hiring decision was the decision to hire Mr. Condie and that decision was made in June of 1991 and was implemented in July of 1991.
In his response to the Respondent's prehearing motion seeking the dismissal of this case and in his testimony at hearing, the Petitioner advanced an alternative reason for contending that the alleged violation occurred on October 22, 1991; the alternative reason being the Petitioner's assertion that it was not until October 22, 1991, that the Petitioner learned that Mr. Condie had been hired several months earlier. This alternative argument is insufficient to avoid the consequences of the late filing of the Petitioner's Charge of Discrimination. First, the Petitioner's testimony that October 22, 1991, was when he first learned of the hiring of Mr. Condie is simply not persuasive. Further, even if it had been persuasively established that the Petitioner did not actually learn of Mr. Condie's hiring until October 22, 1991, there is no evidence in the record to show why the Petitioner could not or should not have learned of the hiring of Mr. Condie at an earlier date. Accordingly, for the reasons discussed above the Petitioner's claim is time- barred and should be dismissed.
In cases in which it is determined that the Petitioner's claim is time-barred, there is usually no need to also address the merits of the
Petitioner's claim. However, inasmuch as a formal hearing has already been held in this case, and in view of the fact that this is a Recommended Order rather than a Final Order, it appears to be the better course to also address the merits of the Petitioner's claim.
Because the Florida Human Rights Act of 1977 was patterned after Title VII, Federal case law is examined for guidance. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).
Section 760.10(1)(a), Florida Statutes (1991), reads as follows, in pertinent part:
It is an unlawful employment practice for an employer:
To . . . fail or refuse to hire any individual . . .because of such individual's
. . . handicap. . . .
In a handicap discrimination case under Florida law where the employer contends the employment decision was made for reasons unrelated to the person's handicap, the United States Supreme Court's analysis applied in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) ("McDonnell Douglas-Burdine"), is employed. See Brand v. Florida Power Corp, 633 So.2d 504, 507, 508 n. 5 (Fla. 1st DCA 1994).
The McDonnell Douglas-Burdine analysis operates in the following fashion:
First, the plaintiff has the burden of establishing by a preponderance of the
evidence a prima facie case of unlawful discrimination. If the plaintiff succeeds, the presumption of discrimination arises and the burden shifts to the defendant-employer
to produce evidence articulating a legitimate, non-discriminatory reason for its action.
The burden of producing evidence is next placed on the plaintiff to demonstrate that the defendant's proffered reason is not the true reason for the employment decision, but was in fact a pretext for discrimination.
Id. at 507.
To make out a prima facie case of handicap discrimination in the failure-to-hire context, a plaintiff must prove:
that he belongs to [the protected group (i.e. that he is handicapped)];
that he applied and was qualified for a job for which the employer was seeking applicants;
that, despite his qualifications he was rejected; and
that, after his rejection, the position remained open, the employer continued to seek applicants from persons of complainant's qualifications.
McDonnell Douglas, at 802; see also, Florida Dept. of Com. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991).
If the employee satisfies his prima facie burden, the burden shifts to the employer to articulate some legitimate, non- discriminatory reason for the employee's rejection. Id. However, plaintiff always retains the burden of persuasion. After the employer articulates its legitimate non-discriminatory reason, the complainant must prove that the employer's stated reason was in fact a pretext, with the real reason being discrimination on the basis of his disability. See St. Mary's Honor Center v. Hicks, 115 S.Ct. 2742, 2751-2 (1993).
In order to make out the first element of his prima facie case, Mr. Blum has to establish that he was "handicapped" as defined by the Statute. Florida courts have adopted the definition of "handicap" under Section 504 of the Federal Rehabilitation Act of 1973 (29 U.S.C. Sections 701-796i) which defines a "individual with handicaps" as one "who (i) has a physical and mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such impairment." Brand, at 510 n.10; see also, Davidson v. Iona-McGregor Fire Protection [and] Rescue Dist., 21 Fla. L. Weekly D1243 (Fla. 2d DCA May 24, 1996) (citing Brand with approval). Mr. Blum's hearing impairment is a "physical impairment" which "substantially limits one or more of [his] major life activities." Accordingly, at all times material to this case, Mr. Blum had a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes (1991).
As to the second, third, and fourth elements of his prima facie case, Mr. Blum has "failed to demonstrate that he was qualified for [the] job for which [the National Enquirer] was seeking applicants." At the time in question, the National Enquirer was seeking an individual who had "desk" experience, computer experience, and managerial potential. Both Mr. Hayes and Mr. Calder knew Mr. Blum and his qualifications well; neither felt he possessed the requisite skills or experience. Accordingly, inasmuch as Mr. Blum did not meet the qualifications for which the National Enquirer was seeking applicants, his proof on the second, third, and fourth elements of his prima facie case fails.
Mr. Blum has also failed to establish pretext. The National Enquirer articulated its legitimate non-discriminatory reason for not hiring Mr. Blum (i.e., he did not possess the necessary skills and experience for the available position). In response, Mr. Blum has failed to offer any persuasive competent substantial evidence that the National Enquirer's articulated reason for its action was not the real reason, with the real reason being handicap discrimination. See Burdine, at 254-6; Hicks, at 2751-2. The greater weight of the evidence is to the effect that Mr. Blum's hearing impairment did not play any role in the National Enquirer's decision not to rehire him. Accordingly, Mr. Blum has failed to carry his burden of proof on the essential element of pretext. On this basis as well, Mr. Blum's claim of handicap discrimination should be dismissed. See Burdine, at 1094-5.
On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner.
DONE AND ENTERED this 27th day of September, 1996, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SUNCOM 278-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996.
ENDNOTES
1/ One of the disputed issues raised in the Respondent's proposed conclusions of law is whether the Petitioner's hearing impairment constitutes a "handicap" within the meaning of the applicable statutory provisions. Although the matter is not specifically addressed in the Respondent's proposed findings of fact, it is a mixed question of fact and law. That disputed factual/legal issue has been resolved in favor of the Petitioner; his hearing impairment is and was a handicap.
2/ The correct name of the Respondent is "National Enquirer, Inc." The style of the case at the head of this Recommended Order has been changed to reflect the correct name of the Respondent.
3/ Numerous changes were made to Chapter 760, Florida Statutes, during the 1992 legislative session. Those changes included a change in the time within which complaints may be filed from 180 days to 365 days from the alleged violation.
The 1992 amendments specifically provided that they applied "only to conduct occurring on or after October 1, 1992." See Section 13 of Chapter 92-177, Laws of Florida. Accordingly, the 180 day limit is applicable to this case.
4/ Florida case law suggests that the 180-day period began to run on the day the employer made the decision to hire Mr. Condie. See St. Petersburg Motor Club v. Cook, 567 So.2d 488 (Fla. 2d DCA 1990). Viewed in the manner most favorable to the Petitioner, the latest date on which the 180-day period began to run was on July 8, 1991, when Mr. Condie began full-time employment with the National Enquirer.
APPENDIX
The following are my specific rulings on all proposed findings of fact submitted by all parties.
Findings submitted by Petitioner:
The Petitioner's post-hearing document titled "Recommended Order" has been treated as the Petitioner's proposed recommended order. That document does not contain any section designated as "findings of fact" or "proposed findings of fact." Under the caption "Statement of the Issues," the document contains fourteen unnumbered paragraphs which contain a mixture of argument and factual assertions. The arguments and the factual assertions are often so intertwined as to make it difficult to discuss them separately. Specific rulings on those fourteen unnumbered paragraphs are as follows:
1st paragraph: Accepted in substance.
2nd paragraph: Accepted in substance with the exception of the comments attributed to Mr. Chrzan. The comments attributed to Mr. Chrzan are rejected, among other reasons, because the evidence is insufficient to show the basis for any such comments. It is specifically insufficient to show that any such comments were based on anything related to the Petitioner's hearing impairment. The comments attributed to Mr. Chrzan are also uncorroborated hearsay.
3rd paragraph: The first sentence is accepted in substance. The last sentence is rejected as not fully supported by competent substantial evidence and as contrary to the greater weight of the evidence.
4th paragraph: Rejected as consisting primarily of arguments, which arguments are not warranted by the evidence in this case.
5th paragraph: Rejected as consisting primarily of arguments, which arguments are not warranted by the evidence in this case. Further, to the extent this paragraph incorporates factual assertions, they are, for the most part, irrelevant to the issues in this case.
6th paragraph: Rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant to the issues in this case.
7th, 8th, 9th, 10th, and 11th paragraphs: These paragraphs are rejected as consisting primarily of argument about irrelevant and/or subordinate and unnecessary details. To the extent that these paragraphs incorporate factual assertions, they are, for the most part, irrelevant to the issues in this case
and are, for the most part, not supported by persuasive competent substantial evidence.
12th paragraph: Rejected as irrelevant or subordinate and unnecessary details.
13th paragraph: Rejected as consisting primarily of argument about matters that are not supported by persuasive competent substantial evidence in the record of this case.
14th paragraph: Rejected as consisting primarily of argument about matters that are not supported by the evidence in this case and arguments that lead to conclusions that are not warranted by the evidence in this case.
Under the caption "Preliminary Statement," the document which has been treated as the Petitioner's proposed recommended order contains three additional unnumbered paragraphs and seventeen numbered paragraphs which like the paragraphs discussed above, also contain a mixture of argument and factual assertions. As with the paragraphs addressed above, the arguments and the factual assertions are often so intertwined as to make it difficult to discuss them separately. Specific rulings on the paragraphs under the caption "Preliminary Statement" are as follows:
1st and 2nd unnumbered paragraphs: Rejected as subordinate and unnecessary comments regarding the Petitioner's impressions of the prehearing phase of this proceeding, rather than proposed findings based on the evidence submitted at the formal hearing.
3rd unnumbered paragraph: Rejected as comprised of generalized comments regarding the Petitioner's views of the manner in which the formal hearing was conducted, rather than proposed findings based on the evidence submitted at the formal hearing.
Paragraphs Nos. 1, 2, 3, 4, 5, 6, 7, and 8: These paragraphs consist entirely of the Petitioner's arguments, comments, and criticisms regarding many procedural details of the formal hearing, but do not contain any factual assertions based on evidence submitted at the formal hearing.
Paragraphs Nos. 9 and 10: These two paragraphs are rejected as consisting primarily of arguments regarding a subordinate and unnecessary detail in the evidence, which detail is taken entirely out of context in the arguments in these paragraphs. The detail complained about in these two paragraphs was clarified in later testimony by Mr. Calder.
Paragraph No. 11: This paragraph is rejected as consisting primarily of arguments about the truthfulness of a witness's testimony, rather than a proposed finding of a specific fact based on the evidence at the hearing. These arguments were considered during the formulation of the findings of fact and were resolved in favor of the Respondent's view of the matter.
Paragraph No. 12: Rejected as consisting of arguments in support of conclusions that are not warranted by the evidence in this case.
Paragraph No. 13: This paragraph consists entirely of the Petitioner's arguments, comments, and criticisms regarding some of the procedural details of the formal hearing, but does not contain any factual assertions based on evidence submitted at the formal hearing.
Paragraph No. 14: The first sentence of this paragraph is rejected as consisting of speculations which are not supported by any evidence in the record. The remainder of this paragraph, which addresses comments attributed to Mr. Chrzan, is rejected, among other reasons, because the evidence is insufficient to show the basis for any such comments. It is specifically insufficient to show that any such comments were based on anything related to the Petitioner's hearing impairment. The comments attributed to Mr. Chrzan are also uncorroborated hearsay.
Paragraph Nos. 15 and 16: These paragraphs are rejected as consisting primarily of further argument about the comments attributed to Mr. Chrzan.
Paragraph No. 17: This paragraph is rejected as being comprised of comments and arguments about a matter that is irrelevant to the disposition of this case.
Findings submitted by Respondent:
All of the findings of fact proposed by the Respondent under the caption "Findings of Fact" are supported by persuasive competent substantial evidence and are consistent with the greater weight of the evidence. Accordingly, all of those proposed findings of fact are accepted and have been incorporated into the findings of fact in this Recommended Order, with a few minor editorial changes.
COPIES FURNISHED:
Mr. Melvin Blum Post Office Box 968
Boca Raton, Florida 33429
Mark B. Roberts, Esq. Steel Hector and Davis LLP 1900 Phillips Point West 777 South Flagler Drive
West Palm Beach, Florida 33401
Sharon Moultry, Clerk
Florida Commission of Human Relations Building F, Suite 240
325 John Knox Road
Tallahassee, Florida 32303-4149
Dana Baird, General Counsel
Florida Commission of Human Relations Building F, Suite 240
325 John Knox Road
Tallahassee, Florida 32303-4149
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. Some agencies allow a larger period within 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.
| Issue Date | Proceedings |
|---|---|
| May 11, 1998 | Final Order Dismissing Petition for Relief From an Unlawful Employment Practice filed. |
| Jul. 15, 1997 | Letter to J. Rayson from E. Golden Re: Final Order filed. |
| Jun. 24, 1997 | Letter to MMP from J. Rayson Re: Final Order filed. |
| Dec. 16, 1996 | Letter to R. Mcelrath from M. Blum Re: Letter dated 10/17 filed. |
| Oct. 21, 1996 | Recommended Order; Letter to MMP from Unsigned Re: ALJ`s Recommended Order; Cover letter from M. Blum filed. |
| Sep. 27, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 04/25-26/96. |
| Sep. 12, 1996 | Letter to DOAH from Melvin Blum (RE: request for case status) filed. |
| Jul. 03, 1996 | (National Enquirer) Proposed Recommended Order; 1 PRO Diskette ; Cover Letter from M. Roberts filed. |
| Jun. 27, 1996 | (Proposed) Recommended Order; Cover letter from M. Blum filed. |
| Jun. 05, 1996 | Memorandum to Parties of Record from MMP (Re: PRO's due 7/3/96) sent out. |
| Jun. 03, 1996 | Transcript of Proceedings Day 1, Volume I & II ; Transcript of Proceedings Day 2, Volume III filed. |
| May 07, 1996 | Letter to M. Blum & CC: M. Roberts from MMP (& enclosed copies of hearing exhibits) sent out. |
| Apr. 25, 1996 | CASE STATUS: Hearing Held. |
| Apr. 17, 1996 | Letter to Division Clerk from M. Blum Re: Special accommodation needed for hearing filed. |
| Apr. 12, 1996 | Order on Motion for Summary Disposition sent out. |
| Apr. 05, 1996 | Letter to hearing officer from M. Blum Re: Response to M. Roberts` letter dated 4/1/96 filed. |
| Apr. 01, 1996 | Respondent National Enquirer`s Supplemental Argument in Support of Motion for Summary Disposition filed. |
| Mar. 28, 1996 | Letter to hearing officer from M. Blum Re: Response to letter from hearing officer dated 3/11/96; Letter to M. Blum from R. McElrath Re: Complaint of employment discrimination filed. |
| Mar. 11, 1996 | Letter to M. Blum & CC: M. Roberts from MMP (re: response to letter of 3/5/96) sent out. |
| Mar. 06, 1996 | Letter to MMP from M. Blum (re: Respondent`s request to cancel scheduled hearing) filed. |
| Mar. 01, 1996 | Respondent National Enquirer`s Renewed Motion for Recommended Summary Final Order and Motion to Relinquish to Jurisdiction; Respondent National Enquirer`s Request for Oral Argument w/cover sheet filed. |
| Mar. 01, 1996 | Respondent, National Enquirer, Inc.`s Notice of Filing Discovery and Affidavit filed. |
| Jan. 18, 1996 | Ltr. to Court Reporter from hearing officer`s secretary sent out. (hearing set) |
| Jan. 18, 1996 | Notice of Hearing sent out. (hearing set for April 25-26, 1996; 9:00am; WPB) |
| Jan. 18, 1996 | Letter to Parties of Record from MMP (re: hearing set for April 25-26, 1996) sent out. |
| Dec. 22, 1995 | Letter to hearing officer from Melvin Blum Re: Hearing filed. |
| Sep. 28, 1995 | Letter to MMP from M. Blum (RE: enclosing copy of letter from Mark Roberts dated September 18, 1995) filed. |
| Sep. 01, 1995 | Letter to M. Roberts from Melvin Blum Re: Request information filed. |
| Aug. 30, 1995 | Respondent National Enquirer`s Reply to Petitioner`s Response filed. |
| Aug. 21, 1995 | Petitioner Melvin Blum`s Response to Respondent`s Objections to Blum`s First Request for Admissions, and for Blum`s Repeated Request for Specific Material from Respondent w/cover letter filed. |
| Aug. 11, 1995 | Letter to Melvin Blum from MMP sent out. (RE: response to Mr. Blum's letter of 7/11/95 as well as his follow-up letter of 8/2/95) |
| Aug. 04, 1995 | Letter to hearing officer from Melvin Blum Re: Respondent`s reply to my request for Admissions; Letter to hearing officer from Melvin Blum Re: Letter dated July 11 filed. |
| Jul. 13, 1995 | Letter to hearing officer from Melvin Blum Re: Respondent`s reply to request for admissions filed. |
| Jul. 07, 1995 | Respondent National Enquirer`s Responses and Objections; Respondent National Enquirer`s Responses and Objections to First Request for Admissions filed. |
| Jun. 20, 1995 | Order on Second Motion to Strike sent out. (motion to strike request for admissions denied) |
| Jun. 20, 1995 | Order on First Motion to Strike sent out. |
| Jun. 14, 1995 | Letter to hearing officer from Melvin Blum Re: Response to hearing officer letter dated 6/8/95; Defendant National Enquirer`s Notice of Service of First Set of Interrogatories filed. |
| Jun. 08, 1995 | Letter to M. Blum from MMP sent out. (RE: notification of address) |
| Jun. 01, 1995 | Respondent National Enquirer`s Supplemental Motion to Strike filed. |
| May 30, 1995 | Letter to hearing officer from Melvin Blum Re: Procedure for mailing information regarding case filed. |
| May 24, 1995 | Petitioner`s Repeated Request for Material from Respondent w/cover letter filed. |
| May 19, 1995 | Respondent National Enquirer`s Motion to Strike filed. |
| Apr. 21, 1995 | (Respondent) Notice of Filing First Set of Interrogatories to Petitioner; Respondent National Enquirer`s First Set of Interrogatories to Petitioner w/cover letter filed. |
| Apr. 14, 1995 | Letter to hearing officer from Mel Blum Re: Response to your letter dated April 7, 1995 filed. |
| Apr. 07, 1995 | Further Order on Discovery and Order Cancelling Hearing sent out. (hearing cancelled, will be rescheduled at the earliest practicable date following the completion of discovery in this case) |
| Apr. 07, 1995 | Letter to M. Blum from MMP sent out. (RE: addressing issues of Mr. Blums`s letters filed W/DOAH on March 17, 1995 and April 4, 1995) |
| Apr. 07, 1995 | Letter to Mark Roberts from MMP sent out. (RE: enclosing copy of letter filed with DOAH 4/4/95 by M. Blum and copy of letter to M. Blum from MMP) |
| Apr. 05, 1995 | Letter to MMP from M. Blum (RE: certified mail received from Mark Roberts) filed. |
| Apr. 04, 1995 | Respondent National Enquirer`s Motion on Discovery; (Respondent) Notice of Taking Depositions; (Respondent) Supplemental Certificate of Service filed. |
| Mar. 29, 1995 | Letter to hearing officer from Mark B. Roberts Re: Pursuant to your office`s request response to Mr. Blum`s March 17, 1995 letter filed. |
| Mar. 21, 1995 | Defendant National Enquirer`s Notice of Service of First Set of Interrogatories; Respondent National Enquirer`s First Request for Admissions w/cover letter filed. |
| Mar. 20, 1995 | Letter to hearing officer from Melvin Blum Re: hearing officer letter dated March 8, 1995 filed. |
| Mar. 09, 1995 | Notice of Hearing sent out. (hearing set for April 26-27, 1995; 9:00am; WPB) |
| Mar. 08, 1995 | Order on Discovery sent out. |
| Jan. 27, 1995 | Letter to hearing officer from Melvin Blum re: Hearing Dates filed. |
| Jan. 26, 1995 | Letter to hearing officer from M. Roberts re: Hearing dates filed. |
| Jan. 24, 1995 | Letter to hearing officer from M. Blum re: Dates available for hearing filed. |
| Jan. 12, 1995 | Letter to HO from M. Roberts re: Motion for Leave to Take Limited Additional Discovery; Respondent National Enquirer's Motion for Leave to Take Limited Additional Discovery; Letter to S. Smith from O. Cusell re: Respondent National Enquirer's Motion for |
| Jan. 10, 1995 | Letter to M. Blum from MMP (re: available hearing dates) sent out. |
| Jan. 09, 1995 | Letter to hearing officer from M. Blum re: Scheduling Hearing filed. |
| Dec. 06, 1994 | Ltr. to MMP from M. Roberts re: status filed. |
| Dec. 06, 1994 | Ltr. to MMP from M. Roberts re: status filed. |
| Nov. 09, 1994 | Ltr. to MMP from M. Blum filed. |
| Oct. 10, 1994 | Respondent National Enquirer, Inc,`s Witness List; Respondent National Enquirer Inc.`s Exhibit List filed. |
| Oct. 07, 1994 | Order sent out. (Thomas B. Pye is permitted to withdraw as counsel for Mr. Blum) |
| Oct. 03, 1994 | (Joint) Stipulation for Substitution of Counsel w/cover ltr filed. |
| Sep. 14, 1994 | (Petitioner) Statement filed. |
| Aug. 29, 1994 | Order sent out. (by no later than 15 days from the date of this order counsel for Petitioner shall file a written statement as to whether the Petitioner opposes bifurcation, the statement shall also contain the reasons for the opposition) |
| Aug. 23, 1994 | Letter to MMP from Mark B. Roberts (re: response to hearing officer`s ltr of 8/11/94) filed. |
| Aug. 17, 1994 | (Joint) Stipulation by Counsel; Notice of Taking Deposition w/cover ltr filed. |
| Aug. 11, 1994 | Letter to T. G. Pye from MMP (RE: request for status report) sent out. |
| Jul. 25, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Jun. 01, 1994 | Letter to Parties of Record from MMP (re: Notice of Appearance) sent out. |
| May 27, 1994 | (Petitioner) Notice of Appearance filed. |
| May 10, 1994 | CC Letter to Thomas G. Pye from Mark B. Roberts (re: Notice of Appearance) filed. |
| May 09, 1994 | CC Letter to Thomas G. Pye from Mark B. Roberts (re: Notice of Appearance filed. |
| Apr. 29, 1994 | Ltr. to MMP from T. Pye re: Reply to Initial Order filed. |
| Apr. 19, 1994 | Letter to Parties of Record from MMP sent out. (Re: Deposition and Examination of Documents) |
| Mar. 11, 1994 | Order Canceling Formal Hearing and Addressing Discovery Matters sent out. (hearing date to be rescheduled at a later date) |
| Mar. 11, 1994 | Re-Notice of Taking Deposition (resetting deposition originally scheduled for 3/10/94) filed. |
| Mar. 10, 1994 | Motion for Protective Order of Insufficient Notice w/Subpoena At Testificandum filed. |
| Mar. 07, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Mar. 01, 1994 | Letter to MMP from Melvin Blum (re: respondent's sudden and surprising motion asking DOAH to relinquish juridiction); Petitioner Melvin Blum Strongly Objects to Respondent's Motion for Recommended Summary Final Order and Motion to Relinquish to Jurisdicti |
| Feb. 28, 1994 | Letter to Parties of Record from MMP sent out. |
| Feb. 18, 1994 | Respondent National Enquirer`s Motion for Recommended Summary Final Order and Motion to Relinquish Jurisdiction; Respondent National Enquirer, Inc.`s Notice of Filing Affidavits; Affidavit of Susan Napolitano; Affidavit of William Condie w/c |
| Feb. 18, 1994 | Respondent National Enquirer, Inc.`s Notice of Filing Affidavits; Affidavit of Susan Napolitano; Affidavit of William Condie;Respondent National Enquirer`s Motion for Recommended Summary Final Order and Motion to Relinquish to Jurisdiction |
| Feb. 02, 1994 | Letter to Mark B. Roberts from Melwin Blum (re: Appointment on February 4, 1994) filed. |
| Jan. 31, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing reset for 3/15-16/94; 9:00am; WPB) |
| Jan. 20, 1994 | Letter to MMP from Melvin Blum (re: request for extension) filed. |
| Jan. 10, 1994 | Respondent National Enquirer, Inc.`s Motion for Continuance filed. |
| Jan. 07, 1994 | Respondent National Enquirer, Inc.`s First Request to Produce to Petitioner Melvin Blum filed. |
| Nov. 24, 1993 | Memorandum to Parties of Record from MMP sent out. |
| Nov. 24, 1993 | Notice of Hearing sent out. (hearing set for 2/17-18/94; 9:00am; WPB) |
| Nov. 19, 1993 | Respondent National Enquirer Inc.`s Statement on Scheduling filed. |
| Nov. 17, 1993 | Letter to MMP from Melvin Blum (re: November 4th ltr regarding scheduling hearing date) filed. |
| Nov. 04, 1993 | Letter to M. Blum & Parties of Record from MMP sent out. (Re: copy of order) |
| Nov. 04, 1993 | Order sent out. (Re: Written Order to be filed by 11/19/93) |
| Nov. 01, 1993 | Letter to MMP from Melvin Blum (re: response to ltr dated October 13, 1993) filed. |
| Oct. 13, 1993 | Order Extending Time sent out. |
| Oct. 13, 1993 | Order Denying Request for a Change of Hearing Officer sent out. |
| Oct. 13, 1993 | Letter to M. Blum from MMP sent out. (Re: response) |
| Oct. 07, 1993 | Letter to MMP from M. Blum (re: request to set hearing date) filed. |
| Aug. 19, 1993 | Respondent National Enquirer Inc.`s Response to Petitioner`s Request for a Change of Hearing Officer filed. |
| Aug. 11, 1993 | Request for a Change of Hearing Officer filed. (From Melvin Blum) |
| Aug. 10, 1993 | (Petitioner) Request for Change of Hearing Officer filed. |
| Jul. 20, 1993 | Letter to M Roberts from MMP sent out. (Re: Ex parte communication) |
| Jul. 20, 1993 | Granting Motion to Strike sent out. |
| Jul. 20, 1993 | Order Requiring More Definite Statement and Alternative Order to Show Cause sent out. |
| Jul. 14, 1993 | Letter to MMP from Melvin Blum (re: hearing date) filed. |
| Mar. 29, 1993 | Letter to MMP from Melvin Blum (re: ltrs that were inadvertently forgotten to mention) filed. |
| Mar. 16, 1993 | Letter to M. Roberts from M. Parrish (RE: Documents received from Mr. Blum, Cover letter and Order requiring More definite Statement) filed. |
| Mar. 16, 1993 | Letter to M. Blum from M. Parrish (RE: response to two undated documents received from Mr. Blum) filed. |
| Mar. 11, 1993 | 93-7128 (Respondent) Re-Notice of Taking Deposition (resetting deposition originally scheduled for 3/10/94) filed. |
| Mar. 11, 1993 | Letter to MMP from Melvin Blum (re: statement); (Petitioner) Response to Order Requiring More Definite Statement filed. |
| Feb. 23, 1993 | Order Extending Time sent out. (deadline for the Petitioner to file his responses to order to show cause is extended to 3-12-93) |
| Feb. 09, 1993 | Order Requiring More Definite Statement sent out. (by no later than 20 days from the date of this order the Petitioner shall file a more definite statement) |
| Feb. 09, 1993 | Order to Show Cause sent out. (parties to show cause why this case should not be closed, must file reply within 20 days from the date of this order) |
| Jan. 22, 1993 | Respondent National Enquirer Inc.`s Answer and Affirmative Defenses; Respondent National Enquirer, Inc.`s Motion to Dismiss, Strike and for More Definite Statement filed. |
| Jan. 20, 1993 | (Respondent) Notice of Appearance filed. |
| Jan. 19, 1993 | Letter to MMP from Susan Napolitano (re: Extension of response to the Initial Order) filed. |
| Jan. 19, 1993 | Ltr. to MMP from Susan Napolitano re: Reply to Initial Order filed. |
| Dec. 31, 1992 | Initial Order issued. |
| Dec. 24, 1992 | Transmittal of Petition; Complaint; Notice of Determination (2); Notice of Redetermination (2); Petition for Relief; Notice to Respondent`s Notice of Transcription filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 08, 1998 | Agency Final Order | |
| Sep. 27, 1996 | Recommended Order | Petitioner failed to prove that employer's failure to hire was motivated by Petitioner's handicap; Employer had legitimate reason. |
