00-004798 Darlene Fitzgerald vs. Solutia, Inc. Status: Closed Recommended Order on Thursday, December 6, 2001.

Summary: Petitioner did not prove prima facie case because: hearing impairment not shown to be legal disability; did not show Respondent was actual employer she applied to for disputed job; and did not prove she met physical qualifications for position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARLENE FITZGERALD, )

)

Petitioner, )

)

vs. ) Case No. 00 - 4798

)

SOLUTIA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal

proceeding before P. Michael Ruff, Administrative Law Judge of

the Division of Administrative Hearings, in Pensacola,

Florida. The hearing was conducted on September 13, 2001, and

the appearances were as follows:

APPEARANCES

For P etitioner: Danny L. Kepner, Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor

Pensacola, Florida 32501

For Respondent: Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding c oncern

whether the Respondent Solutia, Inc., discriminated against

the Petitioner Darlene Fitzgerald, by allegedly denying her

employment because of her hearing impairment. Embodied within

that general issue is the question of whether, under Chapter

760, Florida Statutes, and other relevant law, the Respondent

is an "employer"; whether the Petitioner is handicapped or

disabled; whether the Petitioner is qualified for the position

for which she applied; whether the Petitioner requested a

reasonable accommod ation from the alleged employer; whether

the Petitioner suffered an adverse employment decision because

of a disability; and whether the Petitioner has damages, their

extent, and whether the Petitioner properly mitigated any

damages.

PRELIMINARY STATEMENT

In March 1998 the Petitioner allegedly was denied

employment by the Respondent because of a hearing impairment.

On April 23, 1998, and on June 23, 1998, the Petitioner filed

charges of discrimination with the Florida Commission on Human

Relations (Commi ssion) against the Respondent. The Commission

investigated the matter and ultimately entered a determination

of "no cause" by letter of the Commission dated October 26,

2000. The Commission found that the Petitioner had not stated

a prima facie case of e mployment discrimination because she

had not established that she had actually applied for a

position with the subject Respondent company. On November 2,

2000, a Petition for Relief was filed by the Petitioner

requesting a formal proceeding concerning her alleged

employment discrimination.

The matter was transmitted to the Division of

Administrative Hearings and ultimately assigned to the

undersigned Administrative Law Judge. The cause came on for

formal hearing as noticed on September 13, 2001, at which time

the Petitioner submitted her own testimony as well as that of

Robin Steed. Petitioner's Exhibit one consisting of the

April 23, 1998, charge of discrimination, was admitted into

evidence. The Respondent presented the testimony of Francis

Webb, Mar tha Wyse and Denise McLeod. Respondent's Exhibits

one through seven were admitted into evidence as well.

Upon conclusion of the hearing the parties elected to

transcribe the proceedings and to avail themselves of the

opportunity to file Proposed Recomm ended Orders. Those

Proposed Recommended Orders have been timely filed and have

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Darlene Fitzgerald, is a 34 - year - old

woman who alleges that she applied for a "carpet walker"

position with either the Respondent or "AmStaff" in March

1998. The Respondent, Solutia, Inc. (Solutia), is a company

which owned and operates a manufacturing plant that

manufactures fibers and carpet in Escambia County, Florida. A

numb er of independent contractors operate at the Solutia

plant, performing certain phases of the manufacture and

related services and operations there, including "AmStaff" and

"Landrum."

2. AmStaff is a contractor which operates a tire yarn

plant and a Kraft plant at the Solutia facility. AmStaff

hires its own employees to work in its operations at the

Solutia plant. It is solely responsible for all hiring,

counseling, disciplinary and termination decisions concerning

its employees. AmStaff has its own payr oll, does the Social

Security withholdings for its employees, pays workers'

compensation premiums on its employees and provides retirement

benefits to its employees.

3. Landrum is a staff leasing company which is

responsible for certain jobs at the Solutia plant, including

carpet walkers. Landrum is solely responsible for all of its

hiring, counseling, disciplinary and termination decisions

concerning its employees. Landrum has its own payroll, does

its own Social Security withholdings for its empl oyees and

pays workers' compensation premiums on its employees.

4. A carpet walker is a person who tests carpet for wear

and tear. A carpet walker is required to work 40 hours per

week and to walk approximately 18 miles a day testing carpet.

Neit her Solutia nor AmStaff employs carpet walkers. The

Petitioner has never been to Solutia's facility or offices and

has never gone out to the Solutia plant to apply for a job.

She has had no contact with anyone representing or employed by

Solutia concerni ng a job.

5. All of the Petitioner's contacts concerning

employment in March 1998, were with either AmStaff or Landrum.

The Petitioner testified that she saw a newspaper ad that

AmStaff was taking job applications, but never produced a copy

of tha t ad.

6. The Petitioner went to AmStaff to fill out an

employment application. AmStaff's office is not at the

Respondent Solutia's plant. The Petitioner gave conflicting

testimony as to the date she allegedly applied with AmStaff

for a carpet wal ker position. First, she testified that she

applied for the position on March 15, 1998, which was a

Sunday. After that was established by the Respondent, as well

as the fact that AmStaff was closed on Sundays, the Petitioner

then maintained that she appl ied for the carpet walker

position on March 19, 1998. This date is incorrect, however,

as evidenced by Respondent's Exhibit two in evidence, which is

AmStaff's "notification of testing."

7. According to the Petitioner the company name printed

on the employment application she filled out was AmStaff. The

Petitioner was then scheduled for testing by AmStaff on

March 12, 1998, at Job Service of Florida (Job Service). The

notification of testing clearly indicates that the Petitioner

applied for a job with AmStaff.

8. While at the Job Service, the Petitioner spoke with

an individual named Martha Wyse. The Petitioner and Robin

Steed (an interpreter who accompanied the Petitioner to the

job service site), met Martha Wyse, who never identified he r

employer. Subsequent testimony established that Martha Wyse

was AmStaff's recruiting coordinator. Martha Wyse has never

been employed at Solutia nor did she ever identify herself as

being employed by Solutia.

9. All applicants with AmStaff must b e able to meet

certain physical requirements, including, but not limited to

pushing and pulling buggies weighing 240 to 1,080 pounds;

lifting 50 to 75 pound fiber bags, lifting 60 pound boxes,

stacking and pouring 55 pound bags and working indoors in

tempe ratures of up to 100 degrees Fahrenheit.

10. The Petitioner admitted that she could not push or

pull buggies weighing 240 pounds; could not lift 50 to 75

pound fiber bags, could not lift 60 pound boxes nor stack and

pour 55 pound bags or work indo ors in temperatures in the

range of 100 degrees. Additionally, the Petitioner admitted

that her obstetrician and gynecologist had restricted her, in

March 1998, to no lifting or pushing.

11. On September 24, 1998, the Petitioner was involved

in a n automobile accident. Her doctors restricted her to

lifting no more than 25 to 30 pounds as a result of the

injuries sustained in the automobile accident. Because of the

injuries sustained in the automobile accident, the Petitioner

was unable to work an d applied for Social Security disability.

Apparently she was granted Social Security disability with

attendant benefits.

12. AmStaff employees must work around very loud

machinery. There is noise from the machines themselves,

combined with that o f the air conditioning equipment. Horns

blow signaling that forklift trucks are moving through the

employment area. The machinery also emits a series of beeps

that are codes to let employees know to do different things at

different times regarding the ma chinery. Although the

Petitioner stated that she had no restrictions concerning her

hearing and could hear everything with the help of her hearing

aid, she also stated that she could not stand loud noises

generated by machines.

13. In addition to the physical requirements, AmStaff

employees were required to work rotating shifts. The

employees had to rotate between a 7:00 a.m. to 7:00 p.m.,

shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did

not want to work from 7:00 p.m. to 7:00 a.m. Additionally,

AmStaff's employees were required to work 36 - hour weeks

followed by 42 - hour weeks on alternating week schedules. The

Petitioner did not want to work more than 20 - hours per week in

1998, and in particular the months of April through September

1998. She did not want to work more than 20 - hours per week,

as she did not want to endanger her Social Security income

benefits or have them reduced.

14. Landrum did not have an opening for a carpet walker

position at the time the Petitioner allege dly applied for that

position. The Petitioner did not ask AmStaff or Landrum for

any disability accommodations.

15. If an employee is not entirely aware of the sounds

and signals emanating from a plant and the machinery within

the plant, that empl oyee cannot respond immediately or

accurately to situations that may cause problems with the

machinery and ultimately could cause injury to the employee or

to other employees. If a bobbin is not seated properly on a

machine, for example, the machine will begin to produce a

clanking noise. If the noise is not heard by the operating

employee and the bobbin is not re - seated properly it can

become detached from the machine and be thrown by the force of

the machine potentially striking either the operator or a nyone

who happens to be moving through the machine aisle nearby at

the time. Further, there are over 300 alarm boxes throughout

the plant. These alarms are used in emergency situations.

The alarms indicate the type of emergency, the location of the

emer gency and its severity. There are different types of

warnings for vapor clouds and evacuations. All warnings come

through that alarm system. An employee must listen for the

type of sound or blast, the number of sounds or blasts and the

sequence of the s ounds or blasts in order to determine the

type of emergency and to know how to react to it.

16. The Petitioner was unemployed from September 24,

1998 until April 2000, when she became employed at Walmart.

She left her employment at Walmart in July of 2000. After

leaving Walmart the Petitioner has not been employed and has

not looked for work. She apparently worked at Popeye's Fried

Chicken for an undetermined period of time after March 1998.

From April to September of 1998, she voluntarily restr icted

her work to no more than 20 - hours per week in order to keep

from reducing her Social Security disability benefits.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

pro ceeding. Sections 120.569 and 120.57(1), Florida Statutes.

18. In a proceeding such as this, the Petitioner has the

burden of establishing by preponderant evidence a prima facie

case of unlawful discrimination. If that prima facie case is

demonstrated, a presumption of discrimination arises and the

burden shifts to the employer to articulate a legitimate, non -

discriminatory reason for its action. The burden of going

forward with evidence is next placed on the Petitioner to

demonstrate that the proffered reason is pretextual. The

ultimate burden of persuasion remains, at all times, with the

Petitioner, however. See Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d

207 (1981); St. Mary's Honor Center v. Hicks , 50 9 U.S. _____,

113 S. Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993).

19. Chapter 760, Florida Statutes, known as the "Florida

Civil Rights Act" (FCRA) provides that it is unlawful for an

employer to fail or refuse to hire any individual because of

that pers on's handicap. See Section 760.10(1)(a). The

initial inquiry must be, therefore, whether the Respondent is

an employer within the meaning of the statute. The Petitioner

has the burden of demonstrating that the Respondent in this

case meets the definitio n of an employer for purposes of

Chapter 760, Florida Statutes, concerning the position for

which she made application and which is the subject matter of

this controversy. Preponderant evidence demonstrates that the

Respondent Solutia, Inc., was not the h iring company which

made any employment decision with regard to the Petitioner and

was not the entity to which the Petitioner applied for

employment in the position in question. The Petitioner

submitted her application to AmStaff, Inc. All contacts she

h ad with the employer personnel were with AmStaff or Landrum,

Inc. The Petitioner has never been to the offices of Solutia,

never filled out an application for employment with Solutia

and had no contact with anyone employed by or representing

Solutia conce rning a carpet - walker position or any other

position. AmStaff was solely responsible for all decisions

related to the Petitioner's job application of March 1998.

20. The Petitioner also did not apply for a job at

Landrum during the pertinent time in Marc h 1998. The

Petitioner herself testified that, although she applied at

AmStaff in March 1998, she did not apply at Landrum.

21. The evidence shows that AmStaff was not the

Respondent's agent. AmStaff controls the manners and means of

how work is to be performed, and makes all of the hiring,

disciplinary and termination decisions concerning applicants

and its employees. AmStaff's supervises its employees and not

Solutia, the Respondent. AmStaff also maintains a separate

payroll from that of Solutia an d is responsible itself for all

payroll withholdings. The Petitioner did not establish

liability on the part of the Respondent through principles of

agency based on any action taken by AmStaff. See Greason v.

Southeastern Railroad Associated Bureaus , 650 F.Supp 1 (N.D.

Ga, 1986) (no agency was found by the court in this decision

where there was no evidence that the Defendant controlled,

managed, supervised or otherwise affected the labor practices

and policies of the Plaintiff's employer in that case).

22 . The evidence likewise demonstrates that Landrum was

not the Respondent's agent. Landrum and Solutia are not

sister companies or related corporations. There is no common

management or ownership and there is no common financial

control between the compa nies. Like AmStaff, Landrum is

responsible for its own hiring, disciplining and firing of

employees. It pays its own employee salaries, their Social

Security taxes and workers' compensation premiums. Landrum

controls the manner and means of how the work is done by its

employees and therefore, no liability through an agency

relationship on the part of the Respondent has been

established, based on any action regarding employment taken by

Landrum.

23. Even if the Petitioner had established that the

Respo ndent was an employer for purposes of Chapter 760,

Florida Statutes, the Petitioner has not shown that the

Respondent discriminated against her because of a disability.

In order for the Petitioner to demonstrate a prima facie case

of discrimination, based on a disability, she must show:

(1) That she is handicapped; (2) That she is otherwise

qualified for the position for which she applied; and (3) That

she suffered an adverse employment action under circumstances

which give rise to an inference that the employment action was

based sole upon her handicap.

24. Section 760.22(7), Florida Statutes, defines

"handicap" as follows:

(a) A person has a physical or mental

impairment which substantially limits one

or more of major life activities, or he has

a rec ord of having, or is regarded as

having, such physical or mental impairment

. . .

This definition is essentially the same as that provided in

the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C.

Section 706(7)(b), which states that a disability i s:

(a) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(b) a record of such an impairment;

(c) being regarded as having such an

impairment.

Thus the Florida definition of "handica p" is substantially the

same as the federal definition of "disability." Further,

Florida case law holds that the Florida Civil Rights Act is to

be construed in accordance with the ADA. Greene v. Seminole

Electric Cooperative, Inc. , 701 So. 2d 646 (5th DC A 1997).

25. Examples of major life activities include caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working. 29 C.F.R. Section

1630.2(i). Case law indicates that corrective and mitigating

mea sures for a physical impairment should be considered in

determining whether a person is substantially limited in his

or her major life activities. See Sutton v. United Airlines,

Inc. , 527 U.S. 471, 119 S. Ct. 2139, 144 L.Ed. 450 (1999).

26. The Petitio ner admittedly has a hearing impairment.

By her own testimony, however, she hears from 60 percent to

80 percent in her least impaired ear with the assistance of

her hearing aid. She testified that she did not have any

restrictions with regard to her hea ring and could "hear

everything" with the use of her hearing aid. She also

testified that she has worked at a variety of jobs, including

in a textile plant, in the past, notwithstanding her hearing

impairment. She also testified that she has difficulty

u nderstanding spoken words or voices unless she is facing the

speaker and watching their lips move in some circumstances.

This testimony, therefore, does not clearly establish that the

Petitioner has a legal handicap or disability, although she

clearly suf fers from the physical impairment of hearing loss.

It is not clear that that impairment substantially limits a

major life activity based upon the totality of her testimony.

Assuming that her impairment does substantially limit a major

life activity and, therefore, qualifies as a disability for

purposes of the ADA, the Petitioner in any event, failed to

establish the remainder of her prima facie case for disability

discrimination.

27. There is no evidence to indicate, for instance, that

the Respondent d iscriminated against her based upon a "record"

of disability. A record of impairment is defined as a

situation where a person "has a history of, or has been

classified as having, a mental or physical impairment that

substantially limits one or more live a ctivities." 29 C.F.R.

Section 1630.2(k). The Petitioner must show that "a record

relied on by an employer indicates that the individual has or

has had a substantially limiting impairment" to satisfy this

theory of disability discrimination. See Hilburn v. Murata

Electronics North America , 181 F.3d 1220 (11th Cir. 1999).

The Respondent, however, has never met nor had any contact

with the Petitioner. The Respondent never had, or had access

to, any of the Petitioner's education, medical or employment

reco rds. There is no record on which the Respondent could

have relied in order to support this theory of discrimination.

There is no evidence that the Respondent Solutia, Inc., was on

actual notice of any impairment, much less a legal disability.

28. Ther e is no record evidence that the Respondent

regarded the Petitioner as having a disability. To prevail on

this theory a Petitioner must first introduce substantial

evidence that the employer regarded her as having a permanent

or long time impairment. Sut ton v. Lader , 185 F.3d 1203, 1209

(11th Cir. 1999). The Respondent never had contact with the

Petitioner; therefore, the Respondent could not have regarded

her as impaired. Further, as with an actual disability, a

perceived impairment must be believed t o substantially limit a

major life activity of the individual. Hilburn at 1230. The

Petitioner has not established that her hearing impairment

rose to a level of a disability within the meaning of the ADA.

Also, Denise McLeod of Landrum, explained to th e Petitioner

the safety regulations and issues at the Solutia plant, but

told her that Landrum would be glad to contact her if

something she was qualified for came available.

29. The Petitioner also failed to demonstrate that she

was qualified to perfor m the job she was seeking, with either

AmStaff or Landrum. An essential requirement of the carpet

walker job with Landrum, was that a person worked 35 to 40

hours per week and walked approximately 18 miles per day.

AmStaff employees were required to meet the physical

requirement set forth in Respondent's Exhibit five in

evidence. In addition to the physical requirements, AmStaff

employees were required to work rotating day and night shifts

and 36 to 42 hours per week. The Petitioner admitted that she

ch ose not to work more than 20 hours per week in 1997 and 1998

so as not to cause a reduction of her Social Security

benefits. In addition, she was unwilling to work nights

(i.e., between 7:00 p.m. and 7:00 a.m.) at the time she

applied for work with AmStaf f. The Petitioner could not do

any significant lifting or pushing at this time. Independent

from the physical limitations associated with her difficult

pregnancy, the Petitioner admitted that at the time she

applied for work with AmStaff, she could not p ush or pull

buggies weighing over 240 pounds, could not work in 100 degree

temperatures, and could not stack bags and boxes weighing from

55 to 72 pounds. She also conceded that she was unable to

tolerate loud noises such as those made by machines in the

plant. The operational area of the plant has a very high

noise level. Based upon her own testimony, the Petitioner was

not shown to be qualified for the carpet walker job or other

jobs with AmStaff.

30. The Petitioner has the burden of requesting a

re asonable accommodation from an employer and showing that a

reasonable accommodation for a disability exists that would

allow her to perform the essential functions of the job she

has applied for. See Fussell v. Georgia Ports Authority , 906

F. Supp. 1561, 1569 (S.D. Ga. 1995). The Petitioner conceded

that she had never asked AmStaff or Landrum for any

accommodations. Furthermore, she presented no evidence as to

whether a reasonable accommodation existed which would allow

her to work for AmStaff or Landrum at the Solutia plant. Even

the installation of lights to accompany the alarms would not

fully accommodate the Petitioner in emergency situations. A

light does not give the kind of warning that is needed in

order for the employee to respond appropriately to different

emergency situations. Moreover, installation of the lights

would require a re - wiring of the entire plant of over 200

acres in area which is not a reasonable accommodation to

require of the employer.

31. Moreover, an employer is not requir ed to

substantially change the job description or the duties and

requirements of the job as an accommodation for a disabled

employee or potential employee. Such is not deemed by the

courts to be a reasonable accommodation. Brand v. Florida

Power Corporat ion , 633 So. 2d 504 (Fla. 1st DCA 1994); Howell

v. Michelin Tire Corporation , 860 F.Supp 488 (M.D. Alabama

1994). Thus, desiring to work only 20 hours per week,

declining to work on the night shift, 7:00 p.m. to 7:00 a.m.,

and being unable to tolerate lou d noises or to perform the

requirements of the job in terms of physical lifting, pushing

or pulling, the Petitioner did not present the alleged

employer with a set of employee - specific circumstances

concerning the Petitioner which the employer can reasonab ly

accommodate without totally changing the description,

requirements and duties of the job in question which an

employer is not required to do.

32. An employer is likewise not required to employ

someone who imposes a direct threat to his or her health or

safety or that of others. See Moses v. American Nonwovens,

Inc. , 97 F.3d 446 (11th Cir. 1996) (wherein the court stated

that an employer can terminate a disabled employee if the

disability renders a "direct threat" to his own health or

safety); Donahum v . Consolidated Rail Corp. , 224 F.3d 226 (3rd

Cir. 2000).

33. The Petitioner's hearing impairment posed a direct

threat to her safety as well as that of co - workers, if she

went to work for AmStaff or Landrum at the Solutia plant. An

employee who is not aw are of or is unable to hear the sounds

and signals emanating from the plant and the machinery within

the plant consistently and effectively, cannot respond

immediately to situations that may cause problems with the

machinery and ultimately could cause inju ry to an employee.

Moreover, there are over 300 alarm boxes throughout the

Solutia plant. These alarms are use in emergency situations.

They indicate the type of emergency, where the emergency is

located, and the severity of the emergency. There are

di fferent types of warnings for vapor clouds and evacuations.

All warnings come through that alarm system. An employee must

listen for the type of sound or blast, the number of sounds or

blasts and the sequence of the sounds or blasts in order to

determine the type of emergency.

34. The Petitioner failed to show that the Respondent

caused her to suffer an adverse employment action under

circumstances which give rise to an inference that the

employment action was based upon her handicap. The evidence

and testimony show that the Respondent was not hiring or

employing carpet walkers. The Petitioner never filled out an

application with Solutia, had never been to the Solutia

facilities nor had any contact with anyone from Solutia. As

such, the Respondent di d not cause the Petitioner to suffer

any adverse employment action which would support her charge

of discrimination.

35. It is undisputed that Landrum was the company which

employed carpet walkers. The Petitioner testified that she

did not apply for a ca rpet walking position with Landrum.

Even if she had applied for a position with Landrum, the

undisputed testimony was that no carpet walker position was

available in early March when she purportedly applied for the

position. In addition, the Petitioner's own testimony showed

that she was not qualified for the position. Accordingly,

Landrum could not have caused the Petitioner to suffer any

adverse employment action which would support her charge of

discrimination.

36. The evidence and testimony show t hat AmStaff was not

hiring or employing carpet walkers. As such, AmStaff could

not have cause the Petitioner to suffer an adverse employment

action with respect to the carpet walker position which forms

the basis of the Petitioner's charge. Even though t he

Petitioner did apply for a job with AmStaff, AmStaff did not

cause the Petitioner to suffer an adverse employment action

under circumstances which give rise to an inference that the

employment action was based solely upon her handicap, because

the Petit ioner's own testimony shows that she was not

qualified for any position with AmStaff.

37. The Petitioner has an affirmative obligation to

mitigate her damages. Walters v. City of Atlanta , 903 F.2d

1135 (11th Cir. 1986). The Petitioner is foreclosed fro m

recovering any damages if she failed to properly mitigate her

damages. The Petitioner stopped working on September 24,

1998, when she was in an automobile accident and sustained

injury. She did not return to work until April 2000. She

only worked for Walmart for a couple of months. Further, she

limited her hours of work to 20 hours a week so her SSI

benefits would not be reduced. She has not worked since July

2000 and has not looked for work.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record and the candor and

demeanor of the witnesses, as well as the pleadings and

arguments of the parties, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief in its entirety.

DONE AND ENTERED this 6th day of December, 2001, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

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 6th day of December, 2001.

COPIES FURNISHED:

Danny L. Kepner, Esquire

Shell, Fleming, Davis & Menge, P.A.

226 South Palafox Street, Ninth Floor

Pensacola, Florida 32501

Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303 - 4149

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Fl orida 32303 - 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.