STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MARY COTTRELL, EEOC Case No. 15D201100195

Petitioner, FCHR Case No. 2011-00400

v. DOAH Case No. 11-4572

CONCORD CUSTOM CLEANERS, FCHR Order No. 12-014

Respondent.

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FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Mary Cottrell 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 Concord Custom Cleaners committed unlawful employment practices on the basis of Petitioner’s race (African American) by subjecting Petitioner to different terms and conditions of employment than a white employee and by terminating Petitioner from employment.

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 Tallahassee and Pensacola, Florida, on November 8, 2011, before Administrative Law Judge Robert S. Cohen.

Judge Cohen issued a Recommended Order of dismissal, dated January 27, 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

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, Gantz, et al.

Filed April 23, 2012 9:36 AM Division of Administrative Hearings

v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), 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-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.

The Administrative Law Judge concluded that to establish a prima facie case of discrimination Petitioner must show the following: “(1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) that she received disparate treatment from other similarly-situated individuals in a non-protected class; and (4) that there is sufficient evidence of bias to infer a causal connection between her race and the disparate treatment.” Recommended Order, ¶ 17.

With regard to the last element of the test cited by the Administrative Law Judge, a showing of a “causal connection” between the protected class and the alleged discriminatory act, the Commission has indicated that this element is actually what a Petitioner is attempting to show by establishing a prima facie case of discrimination, and that this element should not, itself, be an element of the test for a prima facie case. See, Baxla v. Fleetwood Enterprises, Inc., d/b/a Fleetwood Homes of Florida, Inc., 20

F.A.L.R. 2583, at 2585 (FCHR 1998), citing Pugh v. Walt Disney World, 18 F.A.L.R. 1971, at 1972 (FCHR 1995), and Martinez v. Orange County Fleet Manager, 21 F.A.L.R. 163, at 164 (FCHR 1997). See, also, Curry v. United Parcel Service of America, 24

F.A.L.R. 3166, at 3167 (FCHR 2000). Accord, Kelley v. Waterwise, FCHR Order No. 06-083 (September 18, 2006), Lawhorn v. Department of Corrections, FCHR Order No. 07-046 (August 24, 2007), Plegue v. Save A Lot / Jerry’s Enterprises, FCHR Order No. 08-033 (May 27, 2008), Zemba v. Phantom Fireworks, FCHR Order No. 09-012 (January 27, 2009), Monteiro v. Atria Windsor Woods, FCHR Order No. 09-047 (June 3, 2009), Wolfe v. Frito-Lay, FCHR Order No. 10-074 (September 21, 2010), Brown v. NuVox, FCHR Order No. 11-024 (March 2, 2011), and Arias v. McGowan’s Heating and Air Conditioning, FCHR Order No. 11-083 (November 3, 2011). But, cf., Royster v. Pate Stevedore Co., Inc., FCHR Order No. 08-031 (May 6, 2008), citing St. John’s School

District v. O’Brien, 973 So. 2d 535 (Fla. 5th DCA 2007) regarding cases involving allegations of handicap / disability discrimination.

This conclusion of law is corrected accordingly.

In modifying this conclusion of law of the Administrative Law Judge, we conclude: (1) that the conclusion of law being modified is a conclusion of law

over which the Commission has substantive jurisdiction, namely a conclusion of law stating what must be demonstrated to establish a prima facie case of unlawful discrimination under the Florida Civil Rights Act of 1992; (2) that the reason the modification is being made by the Commission is that the conclusion of law as stated runs contrary to previous Commission decisions on the issue; and (3) that in making this modification the conclusion of law being substituted is as or more reasonable than the conclusion of law which has been rejected. See, Section 120.57(1)(l), Florida Statutes (2011).

We note that this correction does not change the Administrative Law Judge’s finding that Petitioner did not establish a prima facie case of discrimination given the Administrative Law Judge’s conclusion that Petitioner failed to make a showing that she received disparate treatment from other similarly-situated individuals in a non-protected class. Recommended Order, ¶ 18.

With this correction, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Neither party 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 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:

Mary Cottrell

776 Backwoods Road

Century, FL 32535

Concord Custom Cleaners c/o Christopher J. Rush, Esq.

Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, FL 33426

Concord Custom Cleaners

c/o Thomas A. Groendyke, Esq. Douberley & Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, FL 33323

Robert S. Cohen, 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: 11-005266

Orders for Case No: 11-005266