STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

KURT SHANNON, EEOC Case No. NONE

Petitioner, FCHR Case No.

v. DOAH No. 16-4124

AMALGAMATED TRANSIT UNION, LOCAL 1593,

FCHR Order No.

Respondent.

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FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Kurt Shannon filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - Florida Statutes (2014), alleging that Respondent Amalgamated Transit Union, Local committed an unlawful employment practice on the basis of Petitioner's race (Black) by failing to provide Petitioner adequate representation at an arbitration proceeding.

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

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 by video teleconference at sites in Tampa and Tallahassee, Florida, on September 29, before Administrative Law Judge J. Bruce Culpepper.

Judge Culpepper issued a Recommended Order of dismissal, dated December 2,

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 February 10, 2017 4:18 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 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, received by the Commission on or about December 2016.

There is no indication on the exceptions document that it was provided to Respondent as is required by Admin. Code 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, emailed to the parties on December 20,

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 (2016); see, also, Taylor v. Universal Studios. FCHR Order No. 14-007 (March 26, 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 employment 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. 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.

F.A.L.R. at (FCHR 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. at (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation. FCHR Order No. (December 6, 2005), Eaves v. Central Florida Portfolio. FCHR Order No. (March 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.

Bryant, 586 So. 2d at (Fla. DCA Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. (March

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 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 , 2017. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Tony Jenkins, Panel Chairperson; Commissioner Donna and

Commissioner Jay Pichard

Filed this day of

in Tallahassee, Florida.

Clerk

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

Copies furnished to:

Kurt Shannon

Beneraid Street

Land O' Lakes, FL 34638

Amalgamated Transit Union,

Local

c/o Tobe M . Lev, Esq. Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, FL 32801

J. Bruce Culpepper, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

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By:

Clerk of the )rnrnissi

Florida Commission on Human Relations

Docket for Case No: 16-004124

Orders for Case No: 16-004124