STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

EMERALD MCNEIL, EEOC Case No. 846201125551

Petitioner, FCHR Case No. 2011-00963

v. DOAH Case No. 11-4670

HEALTHPORT TECHNOLOGIES, FCHR Order No. 12-026

Respondent.

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FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Emerald McNeil 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 HealthPort Technologies committed unlawful employment practices on the basis of Petitioner’s race (African American) in the manner in which it disciplined Petitioner.

The allegations set forth in the complaint were investigated, and, on August 11, 2011, 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 by video teleconference at sites in Orlando and Tallahassee, Florida, on February 27, 2012, before Administrative Law Judge Linzie F. Bogan.

Judge Bogan issued a Recommended Order of dismissal, dated April 6, 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 June 27, 2012 10:44 AM Division of Administrative Hearings

FCHR Order No. 12-026

Page 2

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 concluded that the “verbal counseling” and “written warning” received by Petitioner were not adverse employment actions.

Recommended Order, ¶ 29.

In a case in which an Administrative Law Judge concluded that the evidence did not support a finding that a verbal reprimand given a Petitioner was an adverse

employment action, a Commission panel noted, “‘While we will not disturb these conclusions as made by the Administrative Law Judge within the circumstances of the facts of this case, we do note that these types of discipline can amount to an adverse employment action. See, generally, Baxla v. Fleetwood Enterprises, Inc., d/b/a Fleetwood Homes of Florida, Inc., 20 F.A.L.R. 2583 (FCHR 1998).’ Warren v.

Department of Revenue, FCHR Order No. 04-152 (December 7, 2004).” Dey v. City of Kissimmee, FCHR Order No. 07-055 (October 12, 2007).

Further, in conclusions of law adopted by a Commission panel an Administrative Law Judge concluded, “Petitioner did experience adverse employment actions when he received two written reprimands and a negative performance appraisal.” Jones v. State of Florida Department of Transportation, 21 F.A.L.R. 2513, at 2531 (FCHR 1998).

Using the language of Dey, supra, while we will not disturb these conclusions as made by the Administrative Law Judge within the circumstances of the facts of this case, we note that “verbal counselings” and “written warnings” can amount to adverse employment actions. Accord, Tucker v. Crane Aerospace and Electronics, FCHR Order No. 09-80 (August 26, 2009).

We note that while Recommended Order, ¶ 15, indicates that Respondent does not have a progressive discipline policy, the testimony of Respondent’s representatives at hearing transcript pages 64, 70, 181 - 182, and 212 - 213, suggest that when disciplining employees, including termination, prior disciplinary actions were taken into account.

Nevertheless, even if we were to conclude that the disciplinary actions in question in this case were adverse employment actions, the outcome of the case would not change, given the Administrative Law Judge’s conclusions that Petitioner failed to show that individuals similarly situated to Petitioner, not in Petitioner’s protected class, were treated more favorably than Petitioner (Recommended Order, ¶ 30 through ¶ 32), and that Respondent’s legitimate nondiscriminatory reasons for disciplining Petitioner were a pretext for unlawful discrimination (Recommended Order, ¶ 34).

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

law.

FCHR Order No. 12-026

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Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Emerald L. McNeil’s Exceptions to Recommended Order,” received by the Commission on or about April 18, 2012.

There is no indication on the document that it was provided to the Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110.

However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a notice of ex parte communication, mailed to the parties on April 27, 2012.

Respondent filed a response to Petitioner’s exceptions in a document entitled, “Respondent HealthPort’s Response to Petitioner’s Exceptions to Recommended Order.”

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, “The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Section 120.57(1)(k), Florida Statutes (2011); see, also, Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner’s exceptions document suggests that it does not comply with this statutory provision.

It can be said, generally, that Petitioner excepts to the Administrative Law Judge’s finding that no unlawful employment practices occurred in this matter.

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).

In addition, 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, Petitioner’s exceptions are rejected.

FCHR Order No. 12-026

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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 27th day of June , 2012. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Billy Whitefox Stall, Panel Chairperson; Commissioner Gayle Cannon; and

Commissioner Lizzette Romano

Filed this 27th day of June , 2012, in Tallahassee, Florida.

/s/ Violet Crawford, Clerk

Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Emerald McNeil 612 Brockton Drive

Kissimmee, FL 34758

HealthPort Technologies

c/o Matthew T. Gomes, Esq.

Nelson, Mullins, Riley & Scarborough, LLP 201 17th Street, Northwest, Suite 1700

Atlanta, GA 30363

FCHR Order No. 12-026

Page 5

HealthPort Technologies c/o Virginia Gulde, Esq.

Nelson, Mullins, Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202

Tallahassee, FL 32312

Linzie F. Bogan, 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 27th day of June , 2012.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 11-004670

Orders for Case No: 11-004670