STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

STUART EICHELBAUM, EEOC Case No. NONE

Petitioner, FCHR No. 2014-01599

v. DOAH No.

I CAN BENEFIT GROUP, FCHR Order No. 16-021

Respondent.

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FINAL ORDER DISMISSING PETITIO N FOR

AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Stuart Eichelbaum filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Statutes (2013), alleging that Respondent I Can Benefit Group committed an employment practice on the basis of Petitioner's disability by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on February 6, the Executive Director issued a determination finding that there was 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 West Palm Beach and Tallahassee, Florida, on June 3, before Administrative Law Judge Cathy M . Sellers.

Judge Sellers issued a Recommended Order of dismissal, dated February 9,

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 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 May 5, 2016 10:51 AM Division of Administrative Hearings

FCHR Order No. 16-021 2

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 the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order in a document entitled, "Exceptions to Recommended Order dated February 9,

[sic]," received by the Commission on or about February 19,

A review of this filing suggests that Petitioner excepts to the following Recommended Order paragraph numbers: 10, 12, 13, 15, 18, 19, 23, 26, 29, 31, 35, 36,

and 49.

In each instance, Petitioner appears to except to facts found, facts not found, inferences drawn from the evidence presented, credibility determinations made by the Administrative Law Judge, and / or is presenting argument or discussion about the indicated Recommended Order paragraph.

The Administrative Procedure Act establishes the extent to which the Commission can modify or reject a finding of fact or conclusion of law contained in a Recommended Order. It states, "The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and the interpretation of administrative rules over which it has substantive jurisdiction.. or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not or modify findings of fact unless the agency first determines from

a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on

which the findings were based not comply with the essential requirements of law." Section 120.57(1)0), Florida Statutes

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 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 and Family Services,

F.A.L.R. 1735, at (FCHR 1998), citing Maggio v. Martin Marietta 9

F.A.L.R. 2168, 2171 (FCHR 1986)." 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.

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

FCHR Order No. Page 3

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 1 s t DCA 1991). Accord, v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010), Eaves, supra, and Taylor, supra.

Petitioner's exceptions are

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

DONE AND ORDERED day of ,

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Derick Daniel; and

Commissioner Sandra Turner

Clerk

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

Copies furnished to: Stuart

Post Office Box 293081 Davie, FL 33329

FCHR Order No. 16-021 4

I Can Benefit Group

c/o Shana H. Bridgeman, Esq. Goren, Doody & P.A.

3099 East Commercial Blvd., Ste. 200 Fort Lauderdale, FL

Cathy M . Sellers, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

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

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• r

By: •

Clerk of

Florida Commission on Human Relations

Docket for Case No: 15-001176

Orders for Case No: 15-001176