STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

EVERETTE FRAZIER, EEOC Case No. 15D201000225

Petitioner, FCHR Case No. 2010-00604

v. DOAH Case No. 10-6053

HANDI HOUSE OF STARKE, INC., FCHR Order No. 11-065

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Everette Frazier filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2009), alleging that Respondent Handi House of Starke, Inc., committed an unlawful employment practice on the basis of Petitioner’s race (Black) by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on June 16, 2010, the Executive Director issued his determination finding that there was reasonable cause to believe that an unlawful employment practice had occurred.

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

An evidentiary hearing was held in Starke, Florida, on December 14, 2010, and March 29, 2011, before Administrative Law Judge Lawrence P. Stevenson.

Judge Stevenson issued a Recommended Order of dismissal, dated May 26, 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

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Mack v.

Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), Beach-

Filed August 2, 2011 8:23 AM Division of Administrative Hearings

Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

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 note that the Administrative Law Judge made the following finding of fact: “Ms. Hewes testified that she would have offered to bring Petitioner back to work at Handi House if not for his insistent pursuit of what she considered an unfounded and insulting claim of racial discrimination.” Recommended Order, ¶ 21.

The Florida Civil Rights Act of 1992 states: “It is an unlawful employment practice for an employer…to discriminate against any person…because that person has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under this section.” Section 760.10(7), Florida Statutes (2009).

The above set out finding of fact suggests a potential violation of the above statute section prohibiting retaliation for filing a complaint under the Florida Civil Rights Act of 1992.

However, we note that there is no finding that after being told to stay away from Respondent’s property Petitioner asked to return to employment with Respondent. In the absence of such a finding an unlawful employment practice based on retaliation could not have occurred. See Huth v. National Admark Corporation, 23 F.A.L.R. 4077 (FCHR 2000), adopting conclusions of law in the Recommended Order which state, “Absent a showing that she was an applicant for employment or that she became an employee,

Petitioner lacks a statutory basis for seeking relief from an unlawful employment practice.”

In addition, we note that the Complaint of Discrimination filed by Petitioner with the Commission contains no allegations of unlawful retaliation. A Commission Panel has noted, “…failure to include a particular charge in one’s complaint filed with the Florida Commission on Human Relations precluded the inclusion of the charge in one’s petition for relief.” Thompson v. ACS, f/k/a Concera Corporation, FCHR Order No. 04-137 (October 1, 2004).

With these comments, we adopt the Administrative Law Judge’s conclusions of

law.

Exceptions

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

Dismissal

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

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

DONE AND ORDERED this 2nd day of August , 2011. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson; Commissioner Watson Haynes, II; and Commissioner Mario M. Valle

Filed this 2nd day of August , 2011, in Tallahassee, Florida.

/s/

Violet Crawford, Clerk Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

NOTICE TO COMPLAINANT / PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission’s final agency action. To secure a “substantial weight review” by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131.

Copies furnished to:

Everette Frazier

14163 Southeast 44th Street Starke, FL 32091

Handi House of Starke, Inc. c/o Christy Hewes

Post Office Box 776 Starke, FL 32091

Lawrence P. Stevenson, 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 2nd day of August , 2011.

By: /s/

Clerk of the Commission

Florida Commission on Human Relations

FCHR 2010-00604 EEOC 15D201000225 FCHR Order No. 11-065

Type of case: Employment

Basis of discrimination: race (Black) Commission staff determination: No Cause ALJ recommendation: dismissal

Commission panel final action: Adopt Recommended Order

Key Words: race, discharge, no transcript, finding almost amounting to unlawful retaliation – but all elements not present, retaliation claim not included in complaint.

ADDRESSES FOR NOTICE:

For Petitioner…..

Everette Frazier

14163 Southeast 44th Street Starke, FL 32091

For Respondent…..

Handi House of Starke, Inc. c/o Christy Hewes

Post Office Box 776 Starke, FL 32091

DOCKET INFORMATION:

Rec Order: Dismissal Transcript: No Exhibits: Yes Exceptions: No

COMMISSION ON HUMAN RELATIONS

Order Approval/Disapproval

TO: FCHR Commissioners impaneled to decide the below-referenced case FROM: Jim Mallue, Assistant General Counsel

RE: Frazier v. Handi House of Starke, Inc.

DOAH 10-6053; FCHR 2010-00604; FCHR Order No. 11-065

Accompanying this “Order Approval/Disapproval” page is a copy of a final order drafted by the Panel’s counsel / legal advisor containing counsel’s recommendation to you regarding the disposition of the case. This case has been returned to the Commission from the Division of Administrative Hearings.

Please review the case record and determine whether you are in agreement with the recommendations contained in the order drafted by Commission counsel.

Further, please indicate your approval or disapproval of the order drafted by Commission counsel by signing on the appropriate line below, and returning this form by FAX to Denise Crawford in the Commission’s Tallahassee office at 850-488-5291, and by then returning this form by Mail to Ms. Denise Crawford, Clerk of the Commission, Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 100, Tallahassee, FL 32301. If a majority of the panel approves of the order, the order will be entered by the Clerk of the Commission.

# # #

I approve of the order drafted to reflect the Commission’s disposition of this matter:

, Commissioner.

I do not approve of the order drafted to reflect the Commission’s disposition of this matter:

, Commissioner.

END

Docket for Case No: 10-006053

Orders for Case No: 10-006053