STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

CYNTHIA B. MEDINA, EEOC Case No. 15D201000573

Petitioner, FCHR Case No. 2010-02583

v. DOAH Case No. 11-0870

DEPARTMENT OF CHILDREN AND FCHR Order No. 12-016 FAMILIES,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Cynthia B. Medina filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2010), alleging that Respondent Department of Children and Families committed an unlawful employment practice on the bases of Petitioner’s race and National Origin (Hispanic) by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on December 27, 2010, 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 evidentiary hearing was held in Daytona Beach, Florida, on August 9, 2011, before Administrative Law Judge Lawrence P. Stevenson.

Judge Stevenson issued a Recommended Order of dismissal, dated February 8,

2012.

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.

Filed April 23, 2012 9:47 AM Division of Administrative Hearings

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.” The document was filed with the Division of Administrative Hearings on February 23, 2012.

While the exceptions document was filed with the Division of Administrative Hearings instead of the Commission, the document was timely filed, and the Commission will consider the document even though it was filed in the wrong forum. Accord, generally, St. Louis v. Florida Physician Medical Group, FCHR Order No. 11-078 (October 6, 2011), Garcia v. Heart of Florida Medical Center, FCHR Order No. 10-061 (August 10, 2010) and Lane v. Terry Laboratories, Inc., FCHR Order No. 08-022 (April 14, 2008), and cases cited therein.

Petitioner’s exceptions document contains 62 numbered paragraphs. Paragraphs 1 through 33 are statements of the facts as presented by Petitioner and contain no actual exceptions to the Recommended Order. Paragraphs 61 and 62 contain conclusory argument as opposed to exceptions to the Recommended Order. Paragraphs 34 through 49 except to the Administrative Law Judge’s finding / conclusion that Petitioner failed to establish a prima facie case of discrimination, particularly the finding / conclusion that no similarly situated employees outside Petitioner’s protected class were treated more favorably than Petitioner. Paragraphs 50 through 60 except to the Administrative Law Judge’s finding / conclusion that Respondent presented a legitimate nondiscriminatory reason for terminating Petitioner.

In our view, the findings / conclusions excepted to in Paragraphs 34 through 49, and in Paragraphs 50 through 60, essentially take issue with the inferences drawn by the Administrative Law Judge from the evidence presented.

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) and Eaves v. IMT- LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011).

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) and Eaves, supra.

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 above-described exceptions are rejected.

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 23rd day of April , 2012. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Gayle Cannon; and

Commissioner Michael Keller

Filed this 23rd day of April , 2012, 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:

Cynthia B. Medina

c/o David W. Glasser, Esq.

Law Office of David W. Glasser 116 Orange Avenue

Daytona Beach, FL 32114

Department of Children and Families c/o Jane Almy-Loewinger, Esq.

210 North Palmetto Avenue, Suite 430 Daytona Beach, FL 32114

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 23rd day of April , 2012.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 11-000870

Orders for Case No: 11-000870