The Issue The issue for determination is whether Petitioner's allegation of subjection to an unlawful employment practice is barred by Section 760.11(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by Respondent until her termination on November 15, 1996. Petitioner discussed the firing with her attorney in January of 1997. Petitioner was apprised by the attorney that she could file a complaint with the Florida Commission on Human Relations (FCHR) or the Equal Employment Opportunity Commission (EEOC). Prior to August of 1997, Petitioner's attorney informed her that he had filed a Charge of Discrimination on behalf of Petitioner with the EEOC. Petitioner was led to understand that an investigator for EEOC would contact her. Petitioner was never contacted by the EEOC. On April 14, 2000, Petitioner received a notice from her attorney that apprised Petitioner that the attorney had been suspended from the practice of law by the Supreme Court for a period of 10 days. Later in either May or June, Petitioner read a newspaper article that recounted the suspension of Petitioner's attorney from the practice of law. Petitioner then determined to consult her present counsel in this matter, David Glasser, Esquire, to handle the charge she believed had been filed with the EEOC. Petitioner learned through Glasser that her previous counsel had not filed a complaint or charge with the EEOC. On July 10, 2000, Petitioner filed her Charge of Discrimination with the FCHR. Petitioner has neither filed a complaint with the Florida Bar Association or filed a legal malpractice suit against her previous counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 David Glasser, Esquire Glasser and Handel 150 South Palmetto Avenue Suite 100, Box N Daytona Beach, Florida 32114 Douglas Kreuzkamp, Esquire American Red Cross Blood Services King & Spalding 191 Peachtree Street Atlanta, Georgia 30303-1763 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. FCHR Order No. 06-058 Page 2 We adopt the Administrative Law Judge’s findings of fact. 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 adopt the Administrative Law Judge’s conclusions of law. Exceptions Petitioner filed four numbered exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Exceptions to Filed Recommended Order.” There is no indication on Petitioner’s exception document that it was served on Respondent by Petitioner as is required by Fla, Admin. Code R. 28-106.110. The exceptions docurnent was received after the expiration of the 15-day period from the date of the Recommended Order for filing exceptions. See, Recommended Order, Notice of Right to Submit Exceptions; Section 120.57(1)(k), Florida Statutes (2005); and Fla. Admin. Code R. 28-106.217(1). The Recommended Order is dated March 23, 2006, the cover letter accompanying the exceptions document is dated April 10, 2006, and the exceptions document was received by the Commission on April 17, 2006. All exceptions relate to the elements for establishing a prima facie case of discrimination. Exceptions 1 and 4 deal with issues surrounding whether Petitioner was handicapped within the meaning of the law. Exception 2 deals with the issue of whether Petitioner was qualified for the position in question. Exception 3 deals with the issue of whether Petitioner was treated less favorably than other employees. In our view, if all these exceptions were granted, the outcome of the case would not change, since the Administrative Law. Judge concluded that, even if a prima facie case had been established, Respondent established legitimate, nondiscriminatory reasons for terminating Petitioner from her position as a bus driver, namely Petitioner’s taking of the indicated prescription drugs and her inability to meet the lifting requirements of the position (Recommended Order, [42 and J 49), and that there was no showing that these reasons were a pretext for discrimination (Recommended Order, { 49). Further, 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, 21 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 Ocala Regional FCHR Order No. 06-058 Page 3 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). 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 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this__20th _ day of June 2006. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Donna Elam, Panel Chairperson; Commissioner Onelia A. Fajardo; and Commissioner Mario M. Valle Filed this__20th day of June _, 2006, in Tallahassee, Florida. . eld baed iolet Crawford, Cler! Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-708 Copies furnished to: Lorraine C. Morris c/o Warren K. Anderson, Jr., Esq. c/o Michael L. Howle, Esq. Anderson & Howell, P.A. 2029 North Third Street Jacksonville Beach, FL 32250-7429 FCHR Order No. 06-058 Page 4 Lee County Government c/o Andrea R. Fraser, Esq. c/o Jack Peterson, Esq. Post Office Box 398 Fort Myers, FL 33902-0398 William F. Quattlebaum, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel IHEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this__20th _ day of June 2006. we Yat Can Clerk of the Commission Florida Commission on Human Relations
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 14, 1988, as a law enforcement officer, Certification Number 55408, and at all times relevant, the certification was active. Between November of 1993 and March of 1994, the Respondent was employed as a police officer with the Orlando Police Department. During this time, the Respondent was assigned to the Southeast Patrol Division during the midnight shift. In August of 1993, Yvette Jolene Bevivino (Bevivino) became acquainted with the Respondent. At the time Bevivino was employed at Shoney's Restaurant on the 1700 block of South Semoran in the City of Orlando as a Dining Room Supervisor. The Respondent would stop by at the restaurant and talk to Bevivino after she got off at work. The Respondent would usually stop by sometime between midnight to 2:00 a.m. to see her. Usually when the Respondent came to visit he was in uniform. There were, however, times when Respondent told her that he was working undercover. There were other instances that while Respondent was talking to her, he received a radio dispatch, and he would have to leave. Between November of 1993 and March of 1994, Bevivino and the Respondent would leave the restaurant area, go to a secluded location, and engage in sexual conduct. Bevivino and the Respondent engaged in sexual intercourse on two or three occasions. Bevivino performed oral copulation on the Respondent on one occasion, and she observed the Respondent masturbate on one occasion. Usually the liaisons were initiated by the Respondent stopping by the restaurant when she was getting off work. Bevivino would then follow the Respondent to a wooded area behind Denny's on State Road 436 by the airport. The Respondent was dressed in his uniform on each occasion and was driving an Orlando Police Department vehicle. At least some, if not all, of the sexual encounters were interrupted by the Respondent receiving a radio dispatch. If that occurred, the Respondent and Bevivino would complete the act and the Respondent would leave. The sexual encounters with Bevivino would last from 15 minutes to one hour and 15 minutes. On or about July 25, 1994, Sgt. Paul Rooney was employed by the Orlando Police Department and assigned to the Internal Affairs Division. The Respondent stated to Sgt. Rooney on July 25, 1994, and again on August 8, 1994, that he had been having sexual relations with a female while he was on duty and in uniform. On August 8, 1994, Sgt. Rooney formally interviewed the Respondent, and the Respondent was placed under oath prior to his interview. It was the policy of the Orlando Police Department that officers are available at all times they are on duty, even for meal breaks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993), and that Respondent's certification be REVOKED. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. Paul D. Johnston, General Counsel Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Andrew J. Sanderson 946 Malden Court Longwood, Florida 32750 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
