STATE OF FLORIDA COMMISSION ON RELATIONS

JACQUELINE ASH, EEOC No. 15D201400328

Petitioner, FCHR No. 2014-00515

v. DOAH No. 15-1871

PACIFICA SENIOR LIVING WOODMONT, FCHR Order No. 15-065

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Jacqueline Ash filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes (2013), alleging that Respondent Pacifica Senior Living Woodmont committed an unlawful employment practice on the bases of Petitioner's age (DOB: 9-9-73) and race (African American) by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on February 24, 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 Tallahassee, Florida, on June before Administrative Law Judge Suzanne Van Wyk.

Judge Van Wyk issued a Recommended Order of dismissal, dated August

2015.

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 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 October 14, 2015 2:48 PM Division of Administrative Hearings

FCHR Order No. 15-065

Page 2

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 note that in analyzing whether Petitioner had established a case of age discrimination the Administrative Law Judge concluded, "Petitioner is a member of a protected class, both as an and an employee who has attained the age of 40." Recommended Order, 40.

Commission panels have concluded that one of the elements for establishing a prima facie case of age discrimination under the Florida Civil Rights Act of 1992 is a showing that individuals similarly-situated to Petitioner of a "different" age were treated more favorably, and Commission panels have noted that the age "40" has no significance in the interpretation of the Florida Civil Rights Act of 1992. See, e.g., Downs v. Shear Express, Inc., FCHR Order No. 06-036 (May 24, 2006), and cases and analysis set out therein; see also, Boles v. Santa Rosa County Office, FCHR Order No. (February 8, 2008), and cases and analysis set out therein.

Consequently, we yet again note that the age "40" has no significance in the interpretation of the Florida Civil Rights Act of 1992. Accord, e.g., Torrence v. Hendrick Honda Order No. 15-027 (May 21, 2015), Grasso v. Agency for Health Care Administration, FCHR Order No. 15-001 (January 14, 2015), Cox v. Gulf Breeze Resorts Realty, Inc., FCHR Order No. 09-037 (April 13, 2009), Toms v. Marion County School Board, FCHR Order No. 07-060 (November 7, 2007), and Stewart v. Pasco County Board of County Commissioners, d/b/a Pasco County Library System, FCHR Order No. 07-050 (September 25, 2007). But, cfi, City of Hollywood, Florida v.

986 So. 2d 634 (4t h DCA 2008).

With this comment, we adopt the Administrative Law Judge's conclusions of law.

Exceptions

Neither of the parties 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

FCHR Order No. 1 5 - 0 6 5

Page 3

DONE AND ORDERED this day of

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Tony Jenkins; and

Commissioner Sandra Turner

Filed this day , 2 0 1 5 ,

in Tallahassee, Florida.

Clerk J

Commission on Human Relations 4 0 7 5 Esplanade Way, Room Tallahassee, FL 3 2 3 9 9

Copies furnished to:

Jacqueline Ash

4 6 2 Darsey Road Cairo, GA 2 9 8 2 8

Pacifica Senior Living c/o Timothy Tack, Esq. Kunkel Miller &

3 5 5 0 Bushwood Park Drive, Ste. 1 3 5

Tampa, FL

Suzanne Van Wyk, Administrative Law Judge, James Mallue, Legal Advisor for Commission Panel

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 15-001871

Orders for Case No: 15-001871