STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

BRENDALE FIELDS, EEOC Case No. 510201201172

Petitioner, FCHR Case No. 2012-01094

v. DOAH Case No. 12-2613

HOME DEPOT, FCHR Order No. 13-019

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Brendale Fields filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2011), alleging that Respondent Home Depot committed unlawful employment practices on the basis of Petitioner’s race (Black) in the manner in which it disciplined Petitioner and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on July 3, 2012, the Executive Director issued a 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 Jacksonville, Florida, on December 19, 2012, before Administrative Law Judge Suzanne Van Wyk.

Judge Van Wyk issued a Recommended Order of Dismissal, dated December 27,

2012.

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

determined the action to be taken on the Recommended Order of Dismissal.

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

Filed March 11, 2013 2:53 PM Division of Administrative Hearings

FCHR Order No. 13-019

Page 2

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.

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.

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

Exceptions

Petitioner filed exceptions to the Recommended Order of Dismissal in a document entitled, “Exceptions to Recommended Order of Dismissal.” Respondent filed a response to Petitioner’s exceptions in a document entitled, “Respondent’s Response to Petitioner’s Exceptions to the Administrative Law Judge’s Recommended Order of Dismissal.”

Petitioner’s exceptions document takes issue with the conclusions of the

Commission’s investigation of the matter, and argues that it was error not to allow cross examination of Respondent’s witnesses.

We note that the Recommended Order of Dismissal finds that while Petitioner’s counsel appeared at the hearing, Petitioner did not appear at the hearing, and that

Petitioner’s counsel offered no evidence into the record. Recommended Order of Dismissal, ¶ 1, ¶ 2, ¶ 5, and ¶ 8.

With regard to the issues Petitioner raises with the Commission’s investigation of the case, we note that the proceeding before the Administrative Law Judge is de novo. Section 120.57(1)(k), Florida Statutes (2012).

With regard to the argument that it was error not to allow cross examination of Respondent’s witnesses, we note that it has long been held that the ultimate burden of proving that Respondent intentionally discriminated against Petitioner remains with Petitioner, and in this case Petitioner offered no evidence into the record. See, e.g., conclusions of law adopted by a Commission Panel in Spradlin v. Washington Mutual Bank d/b/a Great Western, 23 F.A.L.R. 3359, at 3365 (FCHR 2001).

Petitioner’s exceptions are rejected.

FCHR Order No. 13-019

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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 11th day of March , 2013. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner Michell Long

Filed this 11th day of March , 2013, 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:

Brendale Fields

c/o Sheldon Jerome Vann, Esq. Law Offices of Sheldon J. Vann 841 Prudential Drive, 12th FL Jacksonville, FL 32207

FCHR Order No. 13-019

Page 4

Home Depot

c/o Chelsie J. Flynn, Esq. Ford and Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, FL 32801

Suzanne Van Wyk, 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 11th day of March , 2013.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Filed January 4, 2013 8:00 AM Division of Administrative Hearings

Docket for Case No: 12-002613

Orders for Case No: 12-002613