STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

SHEILA ANNETTE CUNNINGHAM, EEOC No. 15D201400465

Petitioner, FCHR Case No. 2014-00645

v. DOAH No. 14-5350

FLORIDA CREDIT UNION, FCHR Order No. 15-046

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Sheila Annette Cunningham filed a complaint of discrimination pursuant to the Florida Civil Rights Act of Sections 760.01 - Florida Statutes alleging that Respondent Florida Credit Union committed unlawful practices on the basis of Petitioner's race (African American) and on the basis of retaliation by subjecting Petitioner to harassment and to different terms and conditions of employment and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on October 6, the Executive Director issued a determination finding that there was no reasonable

cause to believe that an unlawful 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 Gainesville, Florida, on March 12, 2015, before Administrative Law Judge E. Gary Early.

Judge Early issued a Recommended Order of dismissal, dated May 6,

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

Findings of

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 July 31, 2015 11:08 AM Division of Administrative Hearings

Conclusions of Law

We 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 with the Division of Administrative Hearings on or about May

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 though it was filed in the wrong forum. Accord, generally, Medina v. Department of Children and Families, FCHR Order No. 12-016 (April 23, 2012), St. Louis v. Florida Physician 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 2008), and cases cited therein.

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

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 June

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(l)(k), Florida Statutes (2014); see, also, Taylor v. Universal Studios, FCHR Order No. 14-007 (March 26, 2014), McNeil v. HealthPort Technologies, FCHR Order No. (June 27, and 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 practice 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. 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 Family Services,

F.A.L.R. at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9

F.A.L.R. 2168, 2171 (FCHR 1986)." Barr v. Columbia 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), Eaves v. IMT-LB Central Florida Portfolio. LLC, FCHR Order No. (March 17, and

supra.

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.

586 So. 2d 1205, at (Fla. DCA 1991). Accord, v. Bay County Board of County Commissioners, FCHR Order No. (March 17, Eaves, supra, and Taylor, supra.

Petitioner's 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 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

DONE AND ORDERED this g/ day of

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Michael Keller, Panel Chairperson; Commissioner Daniel; and

Commissioner Sandra Turner

Filed day of in Tallahassee,

n

Clerk

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

(850) 488-7082

Copies furnished to:

Sheila Annette Cunningham Northwest 27t h Avenue

Ocala,FL 34475

Florida Credit Union

c/o R. Michelle Esq. c/o John E. Duvall, Esq.

Ford & Harrison, LLP 225 Water Street, Suite Jacksonville, FL 32202

E. Gary Early, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 14-005350

Orders for Case No: 14-005350