LAURA F. LUCAS,
vs.
Respondent.
) Case No. 04-1570
Pursuant to notice, a formal hearing was held in this case on June 16 and August 3, 2004, in Orlando, Florida, before
Fred L. Buckine, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Laura F. Lucas, pro se
For Respondent: Kelly J. McKibben, Esquire
The issue is whether Respondent engaged in an unlawful employment practice by discriminating in its failure to promote Petitioner on the basis of her race.
On or about October 14, 2003, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission). This Charge of Discrimination alleged that Respondent, the Department of Children and Family Services (Department), discriminated against her, based on her race, which is black (African-American), because it did not promote her to a job for which she had applied. In the Charge of Discrimination, Petitioner alleged that she was denied two promotional opportunities because of her race and that "the most recent date of discrimination occurred on October 6, 2003." However, the issue in this proceeding is limited to the alleged October 6, 2003, incident of discrimination. Upon review and investigation of Petitioner's Charge of Discrimination, on April 9, 2004, the Commission entered a Determination: No Cause. Petitioner timely filed a Petition for Relief.
On or about April 27, 2004, the Commission referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing.
At the final hearing, Petitioner presented the testimony of ten witnesses, but did not testify on her own behalf.
Petitioner had 14 exhibits admitted into evidence. Respondent presented the testimony of four witnesses and had 18 exhibits admitted into evidence.
Transcripts of the June 16 and the August 3, 2004, proceedings were filed on July 8 and August 26, 2004, respectively. At the conclusion of the hearing, the parties agreed to file proposed recommended orders on August 25, 2004. Subsequently, upon request of the Department, the time for filing proposed recommended orders was extended to September 15, 2004. Each party timely filed a Proposed Recommended Order, both of which have been considered in preparation of this Recommended Order.
Pursuant to the Notice of Transfer dated June 26, 2006, this case was transferred to the undersigned as the previously assigned Administrative Law Judge has retired and is unavailable to complete the Recommended Order.
Based upon my review of the entire record, including the Transcript of the proceedings and the documentary evidence, the following findings of fact are made:
Petitioner, Laura Lucas, is an African-American female, who has been employed by the Department's Orlando office since about November 1995.
At all times relevant to this proceeding, Petitioner was employed by the Department as a Human Services Program Specialist. Prior to that time, from November 1995 until about
November 2000, Petitioner was employed by the Department's Orlando office as a Human Services Counselor II.
In or about August 2003, the Department had a vacant position for a Government Operations Consultant II, which is also referred to as a contract manager or a management analyst. The position was advertised through a contract provider, People First. All applications for the position were electronically filed with and received by People First, which then forwarded the applications to the Department.
The Department received approximately 50 applications for the Government Operations Consultant II position from People First.
Petitioner's application was among the applications for the Government Operations Consultant II position that People First provided to the Department.
The application form used by individuals applying for the Government Operations Consultant II position included a space for applicants to indicate the position for which they were applying. In that space, Petitioner's application noted she was applying for the position of "Community/Social Service Specialist/All Other," but made no mention of the Government Operations Consultant II position.
Although Petitioner's application did not specifically indicate that Petitioner was applying for the Government
Operations Consultant II position, Helen Tasker, on behalf of the Department, accepted, considered, and treated Petitioner's application as an application for that position.1 The reason is that Petitioner's application was included with the approximately 50 applications for the subject position that were transmitted to the Department from People First. In fact, that was the only application for Petitioner that the Department received from People First for the subject position.
At all times relevant to this proceeding, Ms. Tasker was the acting program director for the Developmental Disabilities Office. In that role, Ms. Tasker was responsible for hiring a qualified person for the Government Operations Consultant II position. Consistent with her duties related to hiring such person, Ms. Tasker reviewed the applications, independently ranked the applications, and selected the members of the interview team, which subsequently interviewed the candidates.
During her tenure with the Department, Ms. Tasker has served on between ten to 15 interview teams. In some instances, Ms. Tasker served not only as an interview team member, but also as the interview team leader. As a result of this experience, Ms. Tasker knew the standard procedures for reviewing applications as well as for setting up and conducting interviews.
In this case, Ms. Tasker followed the standard procedures for reviewing the applications and setting up and conducting interviews for the subject job opening.
Ms. Tasker reviewed the job description and the related knowledge, skills, and abilities (KSAs) for the Government Operations Consultant II position. Ms. Tasker then reviewed and ranked all the applications that had been transmitted to the Department from People First, including Petitioner's application.2
Ms. Tasker rated and ranked each application based on the applicant's training and education and experience, including contract management experience, budget experience, and experience in direct care involving developmental disabilities.
Utilizing the application rating scale that she developed, Ms. Tasker determined that the four applicants with the highest application ratings were Petitioner, Wendy Shields, Carol Solomon, and Tom Preston. Petitioner, Ms. Shields, and Ms. Solomon each received an application rating of 15, and
Mr. Preston received an application rating of 12.
Ms. Tasker selected the four applicants with the highest application ratings to be interviewed.
Of the four applicants selected to be interviewed for the Government Operations Consultant II position, three were Department employees: (1) Petitioner, an African-American
female; (2) Ms. Shields, a white female; and (3) Ms. Solomon, an African-American female. The fourth applicant selected to be interviewed, was Mr. Preston, a white male.
The Government Operations Consultant II position is a higher-level position and would be a promotional opportunity for Petitioner and Ms. Shields.
The person hired to fill the Government Operations Consultant II position is required to (1) negotiate and establish contracts with providers in accordance with applicable rules and regulations of the Department; (2) serve as provider liaison; (3) serve as the Medicaid waiver contract manager for the program under the Home and Community-Based Waiver Program;
(4) maintain the Medicaid waiver database to track dates related to background screening, licenses, and agreement expiration dates, etc.; (5) serve as contract manager for assigned providers who serve Developmental Disabilities clients and provide technical assistance to Developmental Disabilities providers; (6) track reports prepared by private contractor that monitor the services under the Home and Community-Based Waiver Program and determine if reports require any follow-up assistance by Department staff; (7) answer questions and review proposals regarding Medicaid waiver contracts of outside organizations and/or new persons or agencies seeking to become Medicaid waiver providers; and (8) serve as member of the
contract negotiation team and the budget entity committee, which addresses issues regarding rates for specific services and provides related information to providers.
In addition to the specific job responsibilities for the Government Operations Consultant II position, the KSAs necessary to perform the job duties include the following:
(1) ability to understand applicable rules, regulations, policies and procedures relating to operational and management analysis activities; (2) ability to organize data into logical format for presentation in reports, documents, and other written materials; (3) ability to collect, evaluate, and analyze data to develop alternative recommendations, solve problems, and document work flow and other activities relating to the improvement of operational and management practices; (4) ability to plan, organize, and coordinate work assignments; and
(5) ability to communicate effectively.
Ms. Tasker selected Paula Bowser and Michele Levy to serve with her on the three-member interview team. Ms. Bowser and Ms. Levy were selected because of their extensive and relevant work experience with the Department.
At all times relevant hereto, Ms. Levy had been employed by the Department for 29 years and was a senior unit services specialist. As a senior unit services specialist,
Ms. Levy performed some of the same duties required of a contract manager. Prior to being hired as a senior unit services specialist, Ms. Levy had worked as a contract manager with the Department for seven years.
At all times relevant hereto, Ms. Bowser was the Medicaid waiver coordinator, which is a supervisory position. In this position, Ms. Bowser supervised the Department's cost plan unit review; received, interpreted, and disseminated applicable policies and procedures; and served as liaison to the
Medicaid support coordinators. Prior to Ms. Bowser's working in her current position, she was the "budget person" in the Developmental Disabilities Office for five years.
As leader of the interview team, Ms. Tasker prepared the interview questions. The 12 interview questions accurately reflected and related to the job duties and the KSAs necessary for the Government Operations Consultant II position.
In October 2003, the four selected applicants were interviewed by the interview team. On the day of, but prior to the interviews, Ms. Tasker gave both Ms. Bowser and Ms. Levy a packet for each of the four applicants that were to be interviewed. The packets included the interview questions and an interview rating sheet.
The scoring process used for the interview required each interview team member to rate each applicant on a scale of
one to five. The assigned rating was based on the applicant's responses to the interview questions. As explained on the interview rating sheet, the numerical ratings represented the following: five for outstanding; four for above satisfactory; three for satisfactory; two for less than satisfactory; and one for poor. Based on this rating scale, the highest rating an applicant could receive from one interview team member was 60 (five points for his/her responses to the 12 interview questions).
All three members of the interview team understood and utilized the interview rating system described in paragraph 24.
The four interviews were conducted in the same manner and consistent with Department policy and procedure. Each candidate was interviewed by all three interviewing team members at the same time and was asked the same interview questions. After each interview, the interview team members independently scored the candidates on the rating sheets before any discussions between and among interview team members occurred.
Each interview committee member approached the task of rating the applicants in an objective manner. To this end, each committee member's interview ratings were based on that member's professional opinion and assessment of the applicants' responses to the interview questions, in light of the job duties required
of the Government Operations Consultant II position and the KSAs related thereto.
After all the interviews were completed, Ms. Bowser and Ms. Levy gave their interview rating sheets for the four candidates to Ms. Tasker. The interview sheets for the candidates were then reviewed and the total interview rating for each candidate was calculated. This total was obtained by adding the total interview rating of each interview team member for the particular applicant.
The final ranking of each applicant was determined by adding that individual's applicant or application ranking and his or her interview ranking. This total point score resulted in the applicant's final overall ranking.
Typically, the candidate with the highest overall rating is offered the position. However, the head of the interview committee has the final decision-making authority and, for a limited number of exceptions, is not bound to offer the position to the highest-ranking applicant. For example, the person with the highest overall point total may indicate, after the interview, that he or she is no longer interested in the vacant position. In other instances, the head of the interview team may determine that for some objective reason, the individual with the highest overall rating can not perform the job duties of the position for which he or she interviewed. In
this case, none of those exceptions existed. Therefore, based on the unanimous agreement of the interview team, the candidate with the highest overall rating was the person who was offered the position.
On the interview rating, Ms. Bowser ranked Ms. Shields as her top choice, with a total rating of 47. Ms. Bowser ranked Petitioner a close second, with an interview rating of 46.
At the time of the interviews, Ms. Bowser knew both Petitioner and Ms. Shields, but had known Petitioner much longer. Also, Ms. Bowser had worked with Ms. Shields and, to a lesser degree, Petitioner.
Ms. Bowser had worked some, although not primarily, with Ms. Shields after Ms. Shields was assigned to the Department's Developmental Disabilities Program Office.3
For eight of the 12 interview questions, Ms. Bowser's ratings for Petitioner's and Ms. Shields' responses were either the same or within one point of each other. For the remaining four interview questions, there was a two-point difference in Ms. Bowser's ratings for the responses of Petitioner and Ms. Shields. Petitioner was rated two points higher than Ms. Shields in her responses to questions regarding (1) training in contract management, (2) experience in quality assurance and monitoring activities, and (3) experience in staff training. With regard to the interview question regarding the applicants'
computer skills, Ms. Bowser's rating for Ms. Shields was two points higher than that of Petitioner.
In arriving at her interview ratings for the selected four applicants, including Petitioner and Ms. Shields,
Ms. Bowser considered the substance of the applicants' responses and to some degree their demeanor.
Despite the closeness of her interview ratings for Petitioner and Ms. Shields, Ms. Bowser believed that Ms. Shields was the best candidate for the job. First, Ms. Bowser believed that Ms. Shields' experience as a provider4 would give her a perspective that would be beneficial in working with providers. Additionally, Ms. Bowser believed that Ms. Shields had knowledge of the Medicaid rules and regulations, which was a requirement of the position for which she was applying.5 Finally, Ms. Bowser believed that Ms. Shields had good organizational skills and computer skills and that these skills would make her the best candidate for the position.6
Ms. Bowser's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender.
Ms. Levy rated Ms. Shields as her top applicant, with a total interview rating of 49. Ms. Levy's interview rating for Petitioner was 46, making her the applicant with the second highest interview rating. The closeness of Ms. Levy's ratings
is based on her belief that Petitioner and Ms. Shields interviewed well. In fact, Ms. Levy's interview ratings for all of Petitioner's and Ms. Shields' responses to the 12 interview questions were within one point of each other.
Despite the fact that Ms. Levy's interview ratings for Petitioner and Ms. Shields were close, Ms. Levy believed that Ms. Shields was the best candidate for the position of Government Operations Consultant II. Among the reasons that
Ms. Levy considered Ms. Shields the best candidate were the following: (1) Ms. Shields' prior experience as a provider in Nebraska gave her more perspective and would be helpful in working with providers, (2) Ms. Shields' responses indicated that she could and would effectively handle work priorities and work assignments,7 and (3) Ms. Shields had good computer skills, including experience setting up databases.
Ms. Levy's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender.
Ms. Levy knew both Petitioner and Ms. Shields prior to the interview, but had known Petitioner a lot longer. Ms. Levy also had "worked some" with both Petitioner and Ms. Shields prior to the interview, but had worked more with Ms. Shields.
Ms. Levy worked with Ms. Shields after the contract manager for the unit left. During this time, Ms. Shields
sometimes accompanied Ms. Levy on visits to monitor new providers. While working with Ms. Shields, Ms. Levy observed that Ms. Shields performed numerous tasks and did so very well and was very organized.
As a member of the interview team, Ms. Tasker also completed interview ratings for the four applicants interviewed.
Ms. Tasker's interview ratings for Petitioner and Ms. Shields were very close, with Petitioner receiving the highest rating and Ms. Shields receiving the second highest
rating. Based on their responses to the 12 interview questions, Ms. Tasker's interview rating for Petitioner was 48 and her rating for Ms. Shields was 46.
For most of the 12 interview questions, Ms. Takser's interview ratings for Petitioner's and Ms. Shields' responses were either the same or within only one point of each other. The only exception was Question No. 6, which asked the applicants to describe their experience with quality assurance activities. With regard to their responses to that question, Ms. Tasker's rating for Petitioner was five and for
Ms. Shields was three.8
After the interview team had interviewed all the applicants and independently completed their interview rating sheets, the overall ratings for the candidates were totaled. The total ranking for each candidate was based on the
applicant's application ranking and the interview rating/ranking assigned by the three interview team members.
Ms. Shields' application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 142, giving her a final overall ranking of 157.
Petitioner's application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 140, giving her a final overall ranking of 155.
The remaining two applicants, Ms. Solomon and Mr. Preston had final overall rankings of 140 and 137, respectively.
As noted in paragraph 30 above, the Department's usual procedure is offer the position to the applicant who has the highest final ranking.
In the instant case, of the four applicants interviewed, Ms. Shields had the highest final ranking, with an overall ranking of 157. Petitioner had the second highest final ranking, with an overall ranking of 155.
The interview team members believed, as reflected by the close final rankings, that both Ms. Shields and Petitioner were both excellent candidates for the position and met all the qualifications for the job. Nevertheless, Ms. Shields' total
overall ranking of 157 was two points higher than Petitioner's overall ranking of 155.9
Throughout the application review and ranking process and the interview process, Ms. Tasker wanted to select the applicant who she believed had the competencies to perform the job, and who could perform the work required of the position.
At no point during the hiring process (i.e review of applications, interview process, and/or calculation of rankings) did race or gender influence Ms. Tasker's decisions.
The interview team unanimously and correctly determined that Ms. Shields had the qualifications, experience, and background required and necessary to perform the job of Government Operations Consultant II.
As the leader or head of the interview team,
Ms. Tasker could have offered the position to an applicant who did not have the highest final ranking if she had an objective basis for doing so. However, Ms. Tasker did not have such a reason, even though her own interview rating for Petitioner was two points higher than her rating for Ms. Shields.
Based on Ms. Shields' final overall ranking and Ms. Tasker's belief that Ms. Shields could do the job,
Ms. Tasker determined that Ms. Shields was the best candidate. Having made the foregoing determination, Ms. Tasker, on behalf
of the Department, offered Ms. Shields the Government Operations Consultant II position.
Ms. Shields was hired for the Government Operations Consultant II position on or about October 23, 2003.
The Department's usual hiring procedures requires the Department's Human Resources Office to review the applicant's hiring packet prior to an applicant's being offered a position. In the instant case, Human Resources did not review the hiring packet before Ms. Shields was offered the Government Operations Consultant II position. Instead, the Human Resources Office reviewed the packet after Ms. Shields was offered and accepted the position, and after Petitioner filed a grievance.
Upon review of the packet, Human Resources determined that no laws or policies were violated that would make the hiring of Ms. Shields for the Governmental Operations Consultant II position unlawful.
Petitioner asserted, through various witnesses, that Ms. Shields was pre-selected for the position of Governmental Operations Consultant II. To support this assertion, testimony was presented that in July or August 2002, about a year before that position was vacant and advertised, Ms. Shields was "pulled" from her unit in the Department to work in the Developmental Disabilities Program Office. Petitioner further asserted that Ms. Shields was moved to the Developmental
Disabilities Office in order to train her for the Government Operations Consultant II position. However, Petitioner presented no competent evidence to support this assertion.
At the time Ms. Shields was sent to work in the Program Office, each unit was required to send one of its employees to that office to assist that office in fulfilling its duties. This additional assistance was required because of a staff reduction in the Program Office.
Ms. Shields was the person selected to go to the Program Office, because she had Medicaid waiver experience, which would allow her to assist the Program Office in preparing cost plans.
While working in the Program Office, Ms. Shields was exposed to, learned, and performed some of the job tasks for which the Developmental Disabilities Program Office was responsible. However, as noted above, Ms. Shields was not singled out to work in the Program Office, but was one of several employees selected from their respective Department units to go and assist in the Program Office, due to that office's being short-staffed.
Ms. Shields' assignment to the Program Office was not related to any effort to pre-select her for the position of Government Operation Consultant II, or to provide her with on- the-job-training for such position.10
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat. (2004).
Subsection 760.10(1)(a), Florida Statutes (2004),11 states that it is an unlawful employment practice to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual on the basis of race.
Federal case law interpreting Title VII is applicable to cases arising under Chapter 760, Florida Statutes. See Harper v. Blockbuster Entertainment Corp., 139 F.3rd 1385, 1387 (11th Cir. 1998); and Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996), and cases cited therein.
Petitioner is a member of two specified protected classes (African-American and female), but her complaint alleged only that she was discriminated against because of her race. Respondent is an "employer," pursuant to Subsection 760.02(7), Florida Statutes.
In employment discrimination cases, the petitioner, the employee, has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If a prima facie case is established, the burden shifts to the respondent, the employer, to rebut this preliminary showing by
producing evidence that the adverse action was taken for legitimate nondiscriminatory reasons. If the employer rebuts the prima facie case, the burden shifts back to the petitioner to show by a preponderance of evidence that the respondent's offered reasons for its employment decision were pretextual.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
To establish a prima facie case under the Act where, as here, there is no direct evidence of discriminatory intent, Petitioner must establish that: (1) she is a member of the protected group; (2) she was qualified for the position; (3) she was subject to an adverse employment decision; and (4) after her rejection, the position was filled by a person outside Petitioner's protected group. St. Mary's Honor Center v. Hicks,
509 | U.S. 502 | (1993); McDonnell Douglas Corporation v. Green, |
411 | U.S. 792 | (1973); Department of Community Affairs v. Bryant, |
586 |
So. 2d 1205, 1209 (Fla. 1st DCA 1991). |
Petitioner established a prima facie case. The preponderance of the evidence established that (1) Petitioner is a member of a protected group in that she is an African- American; (2) she was qualified for the Government Operations Consultant II position; (3) she was subjected to an adverse employment action in that she was not hired or promoted to the
Government Operations Consultant II position; and (4) the position was filled by a person outside Petitioner's group, Ms. Shields, who is a white female.
In this case, the Department met its burden to produce evidence of legitimate nondiscriminatory reasons for the adverse employment action, failing to promote Petitioner to the Government Operations Consultant II position. The evidence established that the Department had a legitimate rationale for its action, even though Petitioner met the requirements for the Government Operations Consultant II position.
The Department produced competent, substantial, and credible evidence that the Department's hiring decision was based on its established application ranking and interview rating procedures. The evidence established that the result of these objective and established procedures resulted in
Ms. Shields' being the candidate with the highest overall rating and, thus, the top candidate. The evidence demonstrated that the Department appropriately offered Ms. Shields, the applicant with the highest overall rating, the Government Operations Consultant II position.
In response, Petitioner did not present any relevant or credible evidence that the Department's reasons for the adverse employment action, not promoting her, were a pretext for race discrimination.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination.
DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2006.
1/ The Department's Exhibit F is Petitioner's application that was transmitted to the Department by People First and considered by the Department as Petitioner's application for the Government Operations Consultant II position. Petitioner's Exhibit A is the application that Petitioner purportedly submitted to People First, but that was not forwarded to the Department. The applications (Petitioner's Exhibit A and the Department's Exhibit F) are almost identical. The main difference is that the application, identified as Petitioner's Exhibit A, indicates that the position applied for is "Management Analysts" [sic], while the application identified as Department's Exhibit F
indicates the position applied for is "Community/Social Service Spec/All Other." In other aspects, the applications are virtually identical. Both applications list the same education and job experience, and for the most part, the description of job duties and responsibilities are the same.
2/ At the time Ms. Tasker reviewed the applications, she did not notice that Petitioner's application, which was forwarded by People First, did not specify that the "position applied for" was the Government Operations Consultant II position.
3/ During this time, Ms. Bowser had worked with Ms. Shields as a colleague, not as a supervisor.
4/ For several years, Ms. Shields had worked for and as a provider in Nebraska before she was employed by the Department.
5/ When Ms. Shields was assigned to work in the Program Office, she sometimes assisted Ms. Bowser with cost plans. During this time, Ms. Shields demonstrated, to Ms. Bowser, her knowledge of the Medicaid rules and regulations. During this time,
Ms. Bowser had limited contact with Ms. Shields and was not her supervisor.
6/ During the time Ms. Shields was assigned to the Department's Developmental Disabilities Program Office, Ms. Bowser had observed that Ms. Shields had very good organizational skills and computer skills.
7/ Ms. Levy also indicated that she also had "working knowledge" of this, having worked some with Ms. Shields. See paragraph 42 of Findings of Fact.
8/ In two other areas, Ms. Tasker's ratings for Ms. Shields' responses were one point higher than those of Petitioner. Those areas related to the applicants' knowledge and experience in working with Medicaid programs (Question No. 1) and their experience with contract management activities (Question No. 5). In both of those categories, Ms. Tasker rated Ms. Shields' responses as five and Petitioner's responses as four.
9/ Petitioner seemed to argue that she should have been given more consideration because she had worked for the Department longer than Ms. Shields. However, seniority is not the basis for the Department's selecting or hiring a person for a position. Furthermore, no evidence was presented that the Department's selection and hiring policy required that
preferential treatment be given to Department employees based on their seniority with the Department.
10/ One of Petitioner's witnesses, Yolanda Rivera, an employee in the Program Office, testified that when there is an emergency, people (from other units) are brought into the Program Office to do certain work (i.e. cost plans), and that she would not consider this (on-the-job) training.
11/ This statutory provision is identical to the 2005 version.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Laura F. Lucas
Kelly J. McKibben, Esquire Richard Cato, Esquire Department of Children and
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
