STATE OF FLORIDA COMMISSION ON HUMA N RELATIONS

MICHEA L D. BRISTOL. EEOC No. 15D201400354

Petitioner. FCHR Case No.

v. DOA H No. 14-4695

AMERICA N WATER, FCHR Order No. 15-041

Respondent.

/

FINAL ORDER PETITIO N

RELIE F FRO M AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner D. Bristol filed a complaint o f discrimination pursuant to the Florida Civil Rights Act o f 1992, Sections 760.01 - Florida Statutes

alleging that Respondent American Water committed unlawful employment practices on the basis of Petitioner's disability by denying Petitioner reasonable accommodations and

terminating Petitioner from employment for attendance issues.

The allegations set forth in the complaint were investigated, and, on September 8, 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 in Pensacola, Florida, on February 17, 2015, before Administrative Law Judge R. Bruce

Judge McKibben issued a Recommended Order o f dismissal, dated April 24,

The Commission panel designated below considered the record o f this matter and determined the action to be taken on the Recommended Order.

Findings of Fact

We 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 July 9, 2015 1:11 PM Division of Administrative Hearings

Conclusions of Law

We the Administrative Law Judge's application of the law to the facts to result in a disposition of the matter.

We note that at Recommended Order, 43, the Administrative Law Judge decides the issue of "retaliation." In our view, this is not an appropriate issue to be decided by the Administrative Law Judge in this case.

While the Petition for Relief raises the issue of unlawful "retaliation," we do not see where the issue o f unlawful "retaliation" was raised in the initial complaint of discrimination filed in the case. Allegations not contained in the initial complaint o f discrimination may not subsequently be raised in the case. See, e.g., v.

Crowley Marine Services. Inc., FCHR Order No. 14-020 (June 2014) and Breville v. Florida Department o f Economic Opportunity, FCHR Order No. (May 1,

and cases cited therein.

With this comment, 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 Exception to Proposed Order on Final Hearing." The document was filed with the Division o f Administrative Hearings on May

While the exceptions document was filed with the Division o f Administrative Hearings instead o f the Commission, the document was timely filed, and the Commission wil l consider the document even though it was filed in the wrong forum. Accord, generally, Medina v. Department of Children and Families, FCHR Order No.

(April 23, 2012), St. Louis v. Florida Phvsician Medical Group, FCHR Order No. (October 6, Garcia v. Heart of Florida Medical Center, FCHR Order No.

(August and Lane v. Terry Laboratories, Inc., FCHR Order No. 08-022 (April 14, 2008), and cases cited therein.

Respondent filed a response to Petitioner's exceptions document.

Petitioner's exceptions document contains numbered exceptions. These exceptions except to facts found (Exception Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and facts not found (Exception No. 1), and inferences drawn from the evidence presented (Exception Nos. 1, 3, 4, 7, 8, 9, and

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 resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. I f 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, 2171 (FCHR 1986)." Barr v. Columbia Regional Medical

22 F.A.L.R. at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005), Eaves v.

Central Florida Portfolio, LLC, FCHR Order No. (March and Taylor v. Universal Studios. FCHR Order No. 14-007 (March 26, 2014).

In addition, it has been stated, "The ultimate question of the existence of discrimination is a question of fact." Florida Department o f Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 DC A 1991). Accord, v. Bay County Board o f County FCHR Order No. (March Eaves, supra, and Taylor, supra.

Petitioner's exceptions are rejected.

Dismissal

The Petition for Relief and Complaint o f 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 o f the date this Order is filed with the Clerk of the Commission. Explanation o f the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AN D ORDERED this day

FOR THE FLORIDA COMMISSION RELATIONS:

Commissioner Gilbert M . Singer, Panel Chairperson; Commissioner Rebecca Steele; and

Commissioner Billy Whitefox Stall

Filed this day of

in Tallahassee, Florida.

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

Micheal D. Bristol

c/o Therese A. Esq. McKenzie Law Firm,

905 East Hatton Street Pensacola,FL 32503-3931

American Water

c/o Rodrick D. Holmes, Esq.

Constangy, Brooks, Smith & Prophete, LLP International Place, Suite 400

Memphis, T N 38120

R. Bruce McKibben, Administrative Law Judge, DOA H James Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above listed addressees this day of

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 14-004695

Orders for Case No: 14-004695