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. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result ina correct disposition of the matter. FCHR Order No. 01-012 Page 2 We note a statement of the Administrative Law Judge that we believe requires correction/clarification. Specifically, the Administrative Law Judge stated, “The Division of Administrative Hearings has no jurisdiction to hear allegations of discriminatory conduct which FCHR has not investigated or made a determination as to reasonable cause.” Recommended Order of Dismissal, 7 19. The Florida Civil Rights Act of 1992 does allow Petitioners to file a request for administrative hearing in situations where 180 days have passed since the filing of the complaint and the Commission has not yet reached a determination as to reasonable cause, and, therefore, in those instances, the Division of Administrative Hearings would have jurisdiction to hear allegations of discriminatory conduct “which FCHR has not investigated or made a determination as to reasonable cause.” See, Sections 760.11(8) and 760.11(4), Florida Statutes (1999). We, therefore, correct/clarify this conclusion of law. In so doing we find: (1) that the Administrative Law Judge’s conclusion of law we are correcting is within. the substantive jurisdiction of the Florida Commission on Human Relations, namely the interpretation of in what instances a Petitioner is entitled to an administrative hearing under the Florida Civil Rights Act of 1992; (2) the reason the correction is being made is that the conclusion of law as stated by the Administrative Law Judge is not supported in law; and (3) that in making this correction the rejection of the conclusion of law in question is as or more reasonable than allowing the incorrect conclusion of law to remain. See, Section 120.57(1)(), Florida Statutes (1999). With the above-stated correction/clarification, we adopt the Administrative Law Judge’s conclusions of law. Exceptions Neither party 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 9.110. DONE AND ORDERED this 21 day of (ranch. 2001. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: FCHR Order No. (1-012 Page 3 Commissioner Sharon Ofuani, Panel Chairperson; Commissioner Juan Montes; and Commissioner Aristides Sosa Filed this 2 \_ day of YYa@nCW _, 2001, in Tallahassee, Florida. Azizi man, Acting Clerk Commission on Human Relatioris 325 John Knox Rd., Bldg. F, Suite 240 Tallahassee, FL 32303-4149 (850) 488-7082 NOTICE TO COMPLAINANT / PETITIONER As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission’s final agency action. To secure a “substantial weight review” by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131. Copies furnished to: Anthony Akins 7880 Talley Ann Court Tallahassee, FL 32311 Richard D. Courtemanche, Jr., Esq. David Sessions, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Suzanne F. Hood, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Trend Offset Printing Company (Respondent or Trend), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to an unlawful employment practice.
Findings Of Fact Respondent is, purportedly, a printing company located in Jacksonville, Florida. Specific information as to the company is limited, since the company did not appear at the final hearing. Based on Petitioner’s testimony, it is inferred that Respondent meets the definition of an employer in section 760.02(7), Florida Statutes. On Saturday, September 28, 2019, the printing plant was open, though the office was closed for the weekend. Petitioner was at work that day. On September 28, 2019, Petitioner had some vegetables that she had placed in a personal refrigerator that she kept at work. She intended to take the vegetables to her aunt. Several of the bags in which the vegetables had been placed had broken open. Therefore, after she clocked out of work, Respondent took a box from a trash receptacle located on the plant floor in which to place the vegetables. Unbeknownst to Petitioner, there was a cell phone in the discarded box. She loaded the box, and took it to her aunt’s house. Upon arrival, Petitioner unloaded the box and, at that time, discovered the phone at the bottom. The screen of the phone was cracked and broken. There was no evidence as to how or when the phone was damaged, nor was there any evidence that Petitioner was responsible for the phone’s condition. Petitioner’s aunt recommended that Petitioner discard the damaged phone. Petitioner, wanting to ensure that the phone was returned to its rightful owner, 1 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. regardless of its condition, decided to return the phone on Monday, September 30, 2019, when the office would be open. Upon her return to work on Monday, September 30, 2019, Petitioner immediately turned in the phone to her supervisor, and accurately explained the circumstances of how it came into her possession. On October 2, 2019, Petitioner was presented with a letter of termination from Respondent’s Human Resources Manager, which provided that: After reviewing the pertinent evidence on the evening of Sept 28th, 2019, we have determined to terminate your employment with Trend Offset Printing immediately. Any remaining hours worked and any unused vacation hours will be paid out in full on our next payroll cycle, Oct 11th, 2019. Those worked hours and unused vacation hours will be paid as directed via direct deposit or physical check. I've tried to reach out to you several times but unable to leave a message.[2] Please make arrangements with me to pickup any personal belongings that you may [sic]. If we don't hear from you in a reasonable time your personal belongings will be discarded. The evidence in this case establishes that Petitioner did nothing to warrant her termination. It is unreasonable to think that Petitioner would steal a phone, and then return it at the earliest opportunity. She had no desire or use for a cell phone. She did not try to use it. She had no idea to whom it belonged. That the phone ended up in her possession was entirely accidental. Though there was no evidence as to how or why the phone ended up in the box in the trash, the condition of the phone suggests that it may have been discarded by its owner. In any event, the evidence was persuasive that Petitioner did not intentionally take the phone. 2 The difficulty in reaching Petitioner may have been due to the fact that she did not own a cell phone, did not want a cell phone, and, according to both Petitioner and her sister, did not know how to use a cell phone. The letter of termination was vague, unusually and unnecessarily harsh, and not based on fact. Petitioner testified, for good reason, that “they didn’t treat me fair, at all.” However, Petitioner did not testify or present evidence at the hearing that Respondent’s action was based on discrimination due to race, sex, or age, or was the result of retaliation. As will be discussed herein, the failure to prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 3 Petitioner requested, as relief, that she be reinstated to her previous job with Respondent, because she loved working with her co-workers, who she described as family; and that her name be cleared of the unwarranted allegation of theft. Due to the outcome of this proceeding, the undersigned is unable to recommend Petitioner’s reinstatement. However, this Order is intended, and should be treated, as determining that Petitioner engaged in no theft, or any other conduct vis-á-vis the cell phone, that warranted her termination. RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Annette Johnson’s Petition for Relief, FCHR No. 202126948. DONE AND ENTERED this 8th day of July, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annette Y. Johnson 635 Luna Court Jacksonville, Florida 32205 Trend Offset Printing Company 10301 Busch Drive North Jacksonville, Florida 32218 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact Respondent's Motion to Dismiss for Lack of Jurisdiction asserts that Petitioner was never an employee of Florida Crown and that Petitioner conceded this in attachments to her Petition for Relief. During the telephone motion hearing, Petitioner acknowledged that she was not employed by Florida Crown. Therefore, as a matter of fact, no employer-employee relationship existed between the parties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination. With this disposition, the Final Hearing in this case scheduled for May 5 and 6, 2006, is cancelled, and the file of the Division of Administrative Hearings is hereby closed. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of March, 2006. COPIES FURNISHED: Marcy S. Kelly Post Office Box 3003 Lake City, Florida 32056 Thomas W. Brown, Esquire Brannon, Brown, Haley & Bullock, P.A. Post Office 1029 Lake City, Florida 32056-2029 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction because Respondent was not Petitioner’s employer.
Findings Of Fact The complaint alleged that Petitioner was the victim of employment discrimination based upon her race. The employers identified in the complaint were Respondent and Civigenics/Community Education Centers (Civigenics). The determination issued by FCHR with respect to Respondent stated in pertinent part:1/ The Commission lacks jurisdiction over the Complaint of Discrimination because the Respondent is not the Complainant’s employer. The investigation revealed that Civigenics/Community Education Center, not Respondent, is the proper Respondent in this case. The petition does not allege that Respondent was Petitioner’s employer. Rather, the petition “give[s] acknowledgement to the determination [of] no jurisdiction” and then focuses on the merits of Petitioner’s discrimination complaint. Respondent argues in its motion to dismiss that “Petitioner acknowledges and therefore, concedes the validity of FCHR’s no jurisdiction determination in her request for relief.” The Order to Show Cause entered on October 10, 2008, stated in pertinent part: The petition does not appear to raise any disputed issues of fact as to whether DOC was Petitioner’s employer. That is the only issue properly before the undersigned in this case based upon the “no jurisdiction” determination issued by the Florida Commission on Human Relations (FCHR). Petitioner is entitled to a de novo hearing on the issue of whether DOC was her employer. If it is determined that DOC was her employer, then the case will be returned to FCHR with a recommendation that it investigate the merits of Petitioner’s discrimination complaint against DOC. [Endnote omitted]. If it is determined that DOC was not Petitioner’s employer, then the case will be returned to FCHR with a recommendation that the petition be dismissed based upon a lack of jurisdiction. That said, Petitioner is only entitled to a formal administrative hearing at the Division of Administrative Hearings (DOAH) if there are disputed issues of fact as to whether DOC was Petitioner’s employer. If there are no disputed issues of fact, then DOAH must relinquish jurisdiction back to FCHR. See § 120.57(1)(i), Fla. Stat. As stated above, the petition does not appear to raise any disputed issues of fact on this issue; rather, it “give[s] acknowledgement to the determination of no jurisdiction” and then focuses on the merits of the discrimination complaint. The Order to Show Cause directed Petitioner to: show cause in writing as to why DOC’s Motion to Dismiss should not be granted and/or Petitioner shall file an amended petition that identifies the factual basis upon which Petitioner contends that DOC was her employer. The Order advised Petitioner that: Failure to respond to this Order and/or failure to identify any disputed issues of fact as to whether DOC was Petitioner’s employer will result in a Recommended Order of Dismissal or an Order closing DOAH’s file and relinquishing jurisdiction to FCHR. Petitioner’s response to the Order to Show Cause stated in pertinent part: This is response to the Order to Show Cause, Case #08-4878. I am submitting in response to this order the attachments of a notice of hearing to be held in this case at the Board of County Commissioners, Community Treasures [sic] Room, First Floor, County Administration Building, 12 Southeast First Street, on December 1, 2008, at 1:00 p.m., Gainesville, FL. I am also submitting a copy of the Order of Pre Hearing Instructions. All information as required will be provided at the times ordered. The response does not allege any facts that might establish that Respondent was Petitioner’s employer. The pleadings do not raise any disputed issues of material fact concerning whether Respondent was Petitioner’s employer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent’s motion to dismiss is granted, the final hearing scheduled for December 1, 2008, is cancelled, and it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2008.
