STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

J. L. NIEMAN, EEOC No.

Petitioner, FCHR Case No.

v. DOAH No. 16-3609

CAROLINA CASUALTY INSURANCE COMPANY (W.R. BERKLEY),

FCHR Order No. 17-010

Respondent.

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner J. L. filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes alleging that Respondent Carolina Casualty Insurance Company (W.R. Berkley) committed unlawful employment practices on the bases of Petitioner's race, sex and age and on the basis of retaliation by failing to interview and hire Petitioner for the position of Vice President Claims.

The allegations set forth in the complaint were investigated, and, on May 20,

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 Jacksonville, Florida, on August before Administrative Law Judge Lawrence P. Stevenson.

Judge Stevenson issued a Recommended Order of dismissal, dated November

2016.

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 January 19, 2017 4:16 PM Division of Administrative Hearings

FCHR Order No. Page 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 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 Exceptions to the Recommended Order of the Administrative Law Judge."

Respondent subsequently filed, "Respondent's Response to Petitioner's Exceptions to the Recommended Order of Judge Lawrence P. Stevenson."

Petitioner's exceptions document contains eight numbered exceptions.

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 reject 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 did not comply with the essential requirements of law." Section Florida Statutes

Petitioner's exception numbered 1 argues that the Administrative Law Judge committed a material error of law and / or abuse of discretion as to discovery and privilege determinations.

Conclusions of law made by an Administrative Law Judge as to discovery issues and issues of attorney-client privilege and attorney work-product privilege are not conclusions of law within the substantive jurisdiction of the Commission that the Commission can "reject" or "modify." See Section Florida Statutes

Petitioner's exception numbered 1 is rejected.

Petitioner's exceptions numbered 2, 3, 5, 6 and 8 except to inferences drawn from the evidence presented and / or credibility determinations made by the Administrative Law Judge.

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. If 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,

FCHR Order No. 17-010 3

F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace. 9

F.A.L.R. 2168, at 2171 (FCHR 1986)." Barr v. Columbia Regional Medical Center. 22 F.A.L.R. at (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation. FCHR Order No. (December 6, 2005), Eaves v.

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

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 at 1209 (Fla. A 1991). Accord. v. Bay County Board of County Commissioners. FCHR Order No. (March

supra, and Taylor, supra.

Petitioner's exceptions numbered 2, 3, 5, 6, and 8 are rejected.

Petitioner's exception numbered 4 argues that the Administrative Law Judge committed error in refusing to admit into evidence Petitioner's Exhibit No.

Petitioner's exception numbered 7 argues that the Administrative Law Judge admitted improper hearsay evidence relating to Nelson Tavares, rather than requiring the appearance of Nelson Tavares.

A Commission Panel has concluded, "The Commission, as the agency charged with reviewing the Recommended Order, does not have substantive jurisdiction to review 'admissibility of evidence' determinations of the Administrative Law Judge. See

v. Department of Health. Board of Dentistry. 805 So, 2d DCA 2001)." Lewis v. Royal American Management, Inc., FCHR Order No. (June 9,

Petitioner's exceptions numbered 4 and 7 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 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 Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this day

FOR THE FLORIDA COMMISSION AN

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

Commissioner Gilbert M . Singer

FCHR Order No. 17-010

Page 4

Filed this day

in Tallahassee, Florida.1 /

Clerk

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

(850) 488-7082

Copies furnished to:

J. L.

832 Chanterelle Way Fruit Cove, FL 32259

Carolina Casualty Insurance Company (W.R. Berkley)

c/o Kevin E. Hyde, Esq. c/o Leonard V. Feigel, Esq. Foley & Lardner, LLP

One Independent Drive, Ste. Jacksonville, FL 32202-5017

Lawrence P. Stevenson, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

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

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 16-003609

Orders for Case No: 16-003609