STATEjtwl QK[(DA COMMISSION O HUMAN RELATIONS

TIMOTHY C. HARRIS,

Petitioner,

v. DOAH Case No. 09-4605

PELICAN BAY FOUNDATION,

Respondent.

,/

FCHR Order No. 11-040

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Timothy C. Harris filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2007), alleging that Respondent Pelican Bay Foundation committed unlawful employment practices on the bases of Petitioner's race (Black) and color (identified in the complaint as "dark-skinned") by harassing Petitioner, denying Petitioner wages, and terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on July 14, 2009, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiaryhearing was held in Naples, Florida, on June 16, 2010, and October 19, 20 and 28, 2010, before Administrative Law Judge R. Bruce McK.ibben.

Judge McK.ibben issued a Recommended Order of dismissal, dated February 21,

2011.

The Commission panel designated below considered the record of this matter and

determined the action to be taken on the Recommended Order.

Findings of Fact

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

We adopt the Administrative Law Judge's findings of fact.

Conclusions of Law

We find the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter.

We adopt the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order in a document entitled, "Petitioner's Exceptions to Recommended Order," received by the Commission on or about March 8, 2011. Respondent filed a document entitled, "Respondent, Pelican Bay Foundation, Inc.'s Response to Petitioner's Exceptions to the Recommended Order," on or about March 18, 2011.

Petitioner's exceptions document sets out five numbered exceptions. Within those five numbered exceptions, Petitioner excepts to Recommended Order paragraph numbers 5, 6, 43, 44, 45, 46, and 47. In each instance, these exceptions take issue with facts found and inferences drawn from the evidence presented.

In addition, the "Conclusion" section of Petitioner's exceptions document appears to except to credibility determinations made by the Administrative Law Judge.

The Commission has stated, "It is well settled that it is the Administrative Law Judge's function 'to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge's role to decide between them.' Beckton v. Department of Children and Family Services, 21

F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9

F.A.L.R. 2168, at 2171 (FCHR 1986)." Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005).

Further, it has been stated, "The ultimate question of the existence of discrimination is a question of fact." Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010).

Based on the foregoing, and noting that we have above found the facts as found by the Administrative Law Judge to be supported by competent substantial evidence and the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter, Petitioner's exceptions are rejected.

Attorney's Fees Request as Sanction

In its response to Petitioner's exceptions, Respondent alleges that Petitioner made misrepresentations in his exceptions document and "requests that.the Commission

sanction Petitioner in an amount that will compensate Pelican Bay for the attorney's fees expended in connection with having to address this issue."

We are unaware of any authority granting the Commission the ability to award attorney's fees as a "sanction."

Respondent's request for attorney's fees as a "sanction" is denied.

Dismissal

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

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 12th day of May , 2011. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson; Commissioner Watson Haynes, II; and Commissioner Lizzette Romano

Filed this 12th day of in Tallahassee, Florida.

M=ac..,;.Y--- • 2011,

iolet Crawford, Clerk Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Timothy C. Harris 13309 Little Gem Circle Fort Myers, FL 33913

Pelican Bay Foundation c/o Amy L. Garrard, Esq. GrayRobinson, P.A. Stabile Building, Suite 101 5551 Ridgewood Drive

Naples, FL 34108

R. Bruce McKibben, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 12th day of May , 2011.

By:

Clerk o Commission

Florida Commission on Human Relations

Docket for Case No: 09-004605

Orders for Case No: 09-004605