02-001410 Eugene Hicks vs. Treasure Service/Metro Dade Transit And Ron Jones Status: Closed Recommended Order on Friday, August 1, 2003.

Summary: Petitioner failed to prove his superiors harrassed him, that he had a disability, or that his employer knew Petitioner intended to file a discrimination complaint at the time he was terminated. Dismissal of Petition for Relief recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE HICKS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1410

)

TREASURE SERVICE/METRO DADE )

TRANSIT 1 AND RON JONES, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on February 24 and 25, 2003, by video teleconference, with the

parties appearing in Miami, Florida, before Patricia Hart

Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Eugene Hicks, pro se

11846 Northwest 13th Street

Pembroke Pines, Florida 33026

For Respondent: Eric Rodriguez, Esquire

Offi ce of Dade County Attorney

111 Northwest First Street

Suite 2810

Miami, Florida 33128 - 1930

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner

in his emplo yment on the basis of race and disability and/or

retaliated against the Petitioner for exercising his rights

under Sections 760.01 - 760.011, Florida Statutes (1999), and, if

so, the appropriate remedy.

PRELIMINARY STATEMENT

In a Charge of Discrimination dat ed May 7, 1999, and filed

with the Florida Commission on Human Relations ("FCHR") on

May 17, 1999, Eugene Hicks alleged that his employer, "Treasury

[sic] Services/Metro Date Transit" ("Metro Dade Transit") had

discriminated against him on the basis of rac e and disability

and that he had been the subject of retaliation. The Charge of

Discrimination contains the following allegations:

I. Personal Harm:

Since working for Respondent, I have been

constantly harassed, along with other Black

and non - Hispanic e mployees under the

supervision of Yfrahin Rodriguez. In

addition I have been denied reasonable

accommodation for my disability.

II. Respondent's Reasons for Personal Harm:

No reason was given for the harassment.

Mr. Rodriguez suspended me for

"insubor dination."

III. Discrimination Statement:

I believe I have been discriminated against

because of my Gender - Female [sic],

Disability, and Retaliation which is in

violation of the Americans with Disabilities

Act, and Florida Statutes 760.10 as amended

for the following reasons:

1. Mr. Rodriguez, Supervisor, has

continually harassed me and other Black and

non - Hispanic employees. He regularly refers

to the black employees as "boy", swears and

curses at them, berates and humiliates them

in front of other e mployees, causing a

hostile work environment.

2. Additionally, Mr. Rodriguez had me

followed and under surveillance by a private

investigator from June 20, 1997 through

August 4, 1997, solely for the purpose of

harassing me.

3. He has on numerous occas ions instituted

discipline against me for the same things

other employees do, yet he did not at any

time discipline them. Further, he issued a

disciplinary action report against me for an

alleged incident which occurred while I was

on annual leave and not working.

4. I have reported the harassment and

hostile work conditions to Mr. Rodriguez'

[sic] managers. No action has been taken

against him to date. However, after each

report I made, Mr. Rodriguez would intensify

his actions against me.

5. In add ition, his actions towards me have

affected my health, which caused a severe

stress - related condition which partially

disabled me from on or about July 1997

through January 1998. During that time,

Mr. Rodriguez failed to make sufficient

accommodation for my disability and

suspended me for "insubordination". Mr.

Othen [sic] Gilbert and Mr. Terry Simmerson

[sic] are fully aware of the ongoing

harassment and abuses of Mr. Rodriguez, yet

have failed to take any action to rectify

the situation.

The FCHR issue d a Determination: No Cause on February 19,

2002, 2 in which the FCHR held that "the timeliness and all

jurisdictional requirements have been met" and that "there is no

reasonable cause to believe that an unlawful employment practice

has occurred." A Noti ce of Determination: No Cause was mailed

to Mr. Hicks on February 19, 2002, in which Mr. Hicks was

advised that he could "request an administrative hearing by

filing a PETITION FOR RELIEF within 35 days of the date of this

NOTICE OF DETERMINATION: NO CAU SE."

Mr. Hicks submitted to the FCHR a completed form Petition

for Relief that was not dated but that was filed with the FCHR

on April 2, 2002. In the Petition for Relief, Mr. Hicks named

"Treasury [sic] Service/Metro Dade Transit, Mr. Ron Jones, Human

Re sources Manager," as the Respondent. Each section of the form

Petition for Relief contained only a reference to an attachment.

It is difficult to discern from the assertions in the attachment

the precise nature of Mr. Hicks's complaints. Among the

intel ligible allegations are the following:

. . . [T]he Petitioner was single [sic] out

and continuously harassed regarding work

habits and performances that was [sic] over

and above that of other employees during

this time period. Supervisory and/or

Managemen t records will not reveal were

[sic] other employees [sic] work habits and

performance was observed and documented to

the extend [sic] that Mr. Hicks was observed

during this time period. . . .

* * *

Records will reveal that Complainant did

make his supe rvisor or management aware that

he had a disability and needed an

accommodation verbally or in writing.

Records will show that Mr. Hicks had chronic

and repeated Doctor visits that will reveal

that his condition will [sic] manifest in

observable and at ti mes questionable

behavior patterns. Based on the numerous

complaints filed by both Complainant and

Employer, there was lack of due process in

that the Respondent e.g. Supervisor and

Management failed to provide and [sic]

employee assistance program to ass ist

Mr. Hicks and/or to validate his illness.

On April 5, 2002, the FCHR transmitted Mr. Hicks's Petition

for Relief to the Division of Administrative Hearings for

assignment of an administrative law judge. On April 25, 2002,

before the case had been sch eduled for hearing, Metro Dade

Transit filed Respondent Miami - Dade County's Motion to Dismiss

Petition. 3 In the motion, Metro Dade Transit pointed out that

Mr. Hicks's Petition for Relief had been filed 42 days after the

date of the Notice of Determinatio n: No Cause, rather than the

statutorily - mandated 35 days and requested that Mr. Hicks's

Petition for Relief be dismissed as untimely under

Section 760.11(7), Florida Statutes (1999). 4 Mr. Hicks did not

respond to the motion within the time specified in Rule 28 -

106.204(1), Florida Statutes; Metro Dade Transit's motion was

granted, and a Recommended Order of Dismissal was entered on

May 15, 2003, on the ground that Mr. Hicks's Petition for Relief

was not filed within 35 days of the date of the Notice of

De termination: No Cause. 5

In an Order Remanding Petition for Relief from an Unlawful

Employment Practice entered November 5, 2002, the FCHR

determined that Mr. Hicks's Petition for Relief was timely filed

pursuant to its Rule 60Y - 4.004(1), Florida Administr ative Code,

("When a document is received by mail, the date of the filing

shall relate back to the date of the postmark."). The FCHR

stated in its order of remand that it had found in its file an

envelope, a copy of which it attached to the order, which

p resumably was the envelope in which Mr. Hicks's Petition for

Relief was received by the FCHR; the envelope was postmarked

March 23, 2002. Upon receiving this order of remand, the file

in this case was re - opened, and the final hearing was scheduled

for Feb ruary 24 and 25, 2003.

After the final hearing was convened, Mr. Hicks confirmed

that he was claiming discrimination on the basis of race and

disability pursuant to Section 760.10(1)(a), Florida Statutes

(1999), and retaliation pursuant to Section 760.10(7 ), Florida

Statutes (1999). Metro Dade Transit also referred to the

argument it made in the Respondent's [sic] Response to Initial

Order that Mr. Hicks's Petition for Relief should be dismissed

because his original Charge of Discrimination was not filed

w ithin 365 days of the date of the violations alleged in the

Charge of Discrimination, as required by Section 760.11(1),

Florida Statutes (1999). Metro Dade Transit argued that

Mr. Hicks's Petition for Relief should be dismissed because

Mr. Hicks referred in the Charge of Discrimination filed with

the FCHR on May 17, 1999, to specific incidents that took place

between June 1997 and January 1998.

Mr. Hicks also referred in the Charge of Discrimination to

ongoing harassment and disciplinary actions taken agai nst him at

unspecified times. Because of the vague allegations in both the

Charge of Discrimination and in the Petition for Relief, it

could not be determined without receiving evidence whether the

Charge of Discrimination was filed within 365 days of one or

more of the alleged violations, and a ruling on the request in

the Response to Initial Order that the Petition for Relief be

dismissed was withheld until the conclusion of the hearing.

This issue is discussed in the Conclusions of Law, below.

At the h earing, Mr. Hicks testified in his own behalf and

presented the testimony of Frantz Benoit, Douglas Fahie, and

Greg West. Petitioner's Exhibits 1 through 8 were offered and

received into evidence. Metro Dade Transit objected to

Petitioner's Exhibits 3, 6 , 7, and 8 on the ground that these

exhibits related to incidents that occurred more than 365 days

prior to the date on which Mr. Hicks filed his Charge of

Discrimination; these exhibits were received into evidence for

purposes of establishing the dates on which the subject

incidents occurred.

Metro Dade Transit presented the testimony of Frantz

Benoit, Douglas Fahie, Antomic Augustin, Darryl Clodfelter,

Yfrahin Rodriguez, Omar Yoda, Terry Simonson, and Othan Gilbert.

Respondents' Exhibits 1 through 11 wer e offered and received

into evidence.

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on April 3, 2003.

Mr. Hicks did not file proposed findings of fact and conclusions

of law, but, on March 17, 2003, he filed documents entitled

Recap of Claim and Detained [sic] Account of Request for

Compensation of Relief in which he requested an award of damages

in the amount of $11,073,000.00. Metro Dade Transit filed on

April 23, 2003, the Respondent's Request for E xtension of Time

to File Proposed Findings of Fact and Conclusions of Law, in

which it asserted that it had not, as of April 23, 2003,

received a copy of the transcript filed with the Division of

Administrative Hearings on April 3, 2003; Mr. Hicks objected to

the requested extension. An order was entered extending the

time for filing the proposed findings of fact and conclusions of

law for a period of ten days; two additional extensions of time

were granted, over Mr. Hicks's objections, and Metro Dade

Tran sit timely filed it proposed findings of fact and

conclusions of law. Both Mr. Hicks's and Metro Dade Transit's

post - hearing submittals have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Mr. Hicks is an African - American. He was employed by

Metro Dade Transit from approximately 1993 until May 13, 1999.

During h is employment, he worked in the Revenue Department as a

Transit Revenue Collector.

2. When Mr. Hicks first began working for Metro Dade

Transit, he was assigned to work the night shift as a truck

driver. He was responsible for going to different bus yard s and

either pulling cash boxes from the buses or reading the numbers

on the bus's turnstiles and comparing those to the numbers on

the cash boxes.

3. In or around 1995, Mr. Hicks was assigned to the bus

yard identified as Northeast 2. His job was to rem ove the cash

boxes from the buses that came into the yard and to replace the

full boxes with empty ones. He would then empty the cash boxes

through a machine that would drop the money into the safe.

4. In or around 1997, Mr. Hicks returned to his former

assignment driving a truck to different bus yards. He worked

the second shift and visited three different bus yards, where he

would give each revenue collector assigned to the bus yards a

30 - minute break during the rush hours.

5. Terry Simonson, a Transi t Revenue Collections

Supervisor 2, hired Mr. Hicks as a revenue collector for Miami

Dade Transit in 1993.

6. Yfrahin Rodriguez was a Transit Revenue Collections

Supervisor 1 from 1993 until May 1998, when he left his position

to become a code enforcement officer for Miami - Dade County Team

Metro.

7. Mr. Hicks's employment with Metro Dade Transit

terminated on May 13, 1999, for reasons that will be discussed

below.

8. Mr. Hicks received satisfactory employment evaluations

for 1995, 1996, and 1997, and he was given merit salary

increases in 1996, 1997, and 1998. 6

9. In his evaluations for 1995 and 1996, which were

completed by his then - supervisor Curtis Fullington in

January 1996 and January 1997, respectively, Mr. Hicks was

described as an employee who "c ooperates reluctantly at times"

and who "disregards some rules and procedures."

10. In his evaluation for 1997, which was completed in

January 1998 by Mr. Rodriguez, Mr. Hicks was described as an

employee who "reluctantly cooperates with his peers, and ha s

trouble accepting advice and counseling with his supervisors"

and who "disregards some departmental rules and policies." In

addition, several supervisors reported to Mr. Simonson that

Mr. Hicks was "a little difficult" to deal with.

11. Mr. Rodriguez w as very professional in carrying out

his duties as a supervisor and treated all of the employees he

supervised, including African - American employees, fairly and

with respect.

12. Frantz Benoit, Douglas Fahie, Antomic Augustin, Darryl

Clodfelter, and Greg West are current and former Miami Dade

Transit Revenue Collectors who were supervised by Mr. Rodriguez

and worked with Mr. Hicks. Mr. Benoit, Mr. Fahie, Mr. Augustin,

and Mr. West are African - Americans. Mr. Rodriguez always acted

very professionally in h is dealings with Mr. Benoit, Mr. Fahie,

and Mr. Augustin as their supervisor, and Mr. Rodriguez treated

them fairly and with respect.

13. Mr. Benoit, Mr. Fahie, Mr. Augustin, and

Mr. Clodfelter did not ever observe Mr. Rodriguez treat

Mr. Hicks with disre spect or in a derogatory manner, and none of

these individuals ever heard Mr. Rodriguez call Mr. Hicks "boy"

or harass him.

14. Mr. Rodriguez and Mr. Hicks were involved in several

confrontations over the years. Mr. Benoit observed

Mr. Rodriguez and Mr. Hicks in a "heated discussion" at one

time. Mr. Augustin observed Mr. Rodriguez and Mr. Hicks get

into a "verbal confrontation" in May 1997, when Mr. Rodriguez

asked Mr. Hicks a question related to Mr. Hicks's job;

Mr. Augustin observed Mr. Hicks use prof anity during the

confrontation.

15. Mr. Clodfelter observed an "exchange" between

Mr. Rodriguez and Mr. Hicks when Mr. Rodriguez introduced

Mr. Hicks to a new duty log that he wanted all the revenue

collectors working as "UT - 2's" to complete. Mr. Rodrigu ez gave

both Mr. Hicks and Mr. Clodfelter a duty - log form that required

entry of the time the employee arrived at a particular bus yard

and the time the employee left the bus yard. 7 Mr. Clodfelter

discerned from the exchange between Mr. Hicks and Mr. Rodr iguez

that Mr. Hicks misunderstood the nature of the duty log and

believed he was being singled out and was the only revenue

collector required to complete the duty log. Mr. Clodfelter

described Mr. Hicks as "very upset" and observed Mr. Hicks tell

Mr. Ro driguez he would not complete the duty log.

16. Mr. West is an African - American who worked as a Miami

Dade Transit Revenue Collector from 1985 until he was terminated

in 1997. Mr. West believes that Mr. Rodriguez harassed both him

and Mr. Hicks because t hey spoke out about things they thought

were wrong with Miami Dade Transit.

17. Mr. Simonson was Mr. Rodriguez's supervisor during the

time that Mr. Rodriguez was a Transit Revenue Collections

Supervisor 1. Mr. Hicks complained to Mr. Simonson several

ti mes that he believed Mr. Rodriguez was harassing him, although

Mr. Hicks never told Mr. Simonson that Mr. Rodriguez was making

remarks to him related to his race.

18. As a result of Mr. Hicks's complaints, Mr. Simonson

met several times with Mr. Rodriguez and Mr. Hicks to discuss

the difficulties they had working with one another. In

Mr. Simonson's opinion, Mr. Rodriguez and Mr. Hicks had problems

working together because Mr. Hicks gave Mr. Rodriguez "a hard

time." At the end of each of the meetings, how ever,

Mr. Rodriguez and Mr. Hicks shook hands and agreed to try to

work together amicably.

19. One of these meetings between Mr. Simonson,

Mr. Rodriguez, and Mr. Hicks was also attended by Othan Gilbert,

who was at the time the manager of Treasury Service s for Miami

Dade Transit and Mr. Simonson's supervisor. Neither

Mr. Simonson nor Mr. Gilbert recalls Mr. Hicks saying anything

about Mr. Rodriguez telling Mr. Hicks that all Blacks do is

complain or that he was going to get rid of Mr. Hicks.

Events leadi ng to Mr. Hicks's termination .

20. In 1998 and 1999, Omar Yoda was a Transit Revenue

Processing Supervisor 1; Mr. Yoda did not supervise Mr. Hicks

because the revenue processing section is distinct from the

revenue collections section. In late December 1998 or early

January 1999, Mr. Hicks approached Mr. Yoda and told Mr. Yoda

that he had a job at the post office lined up and that he wanted

to use up his accrued sick leave before he quit his job with

Miami Dade Transit. Mr. Yoda told Mr. Hicks that he c ould not

work another job while he was out on sick leave because it was

not permitted by Miami Dade Transit's rules. Mr. Hicks

protested that other employees were allowed to use their sick

leave in this way. Mr. Hicks did not tell Mr. Yoda that he was

si ck or that he needed to be placed in a light duty assignment.

21. On January 5, 1999, Mr. Hicks sent to Mr. Simonson by

facsimile transmittal a Certificate for Return to Work issued by

Andover Medical Group and dated January 4, 1999. It stated on

the cer tificate, which was apparently signed by a medical

doctor, that Mr. Hicks would be able to return to work on

February 11, 1999. No diagnosis was included on the

certificate.

22. On March 1, 1999, Mr. Hicks sent to Mr. Simonson by

facsimile transmittal a Certificate for Return to Work issued by

Andover Medical Group and dated March 1, 1999. It stated on the

certificate, which was apparently signed by a medical doctor,

that Mr. Hicks would not be able to return to work until

April 9, 1999. No diagnosis wa s included on the certificate.

23. Mr. Hicks submitted Requests for Leave for the periods

extending from January 1 through 9, 1999; January 12 through 23,

1999; January 26 through February 6, 1999; February 9

through 21, 1999; February 24 through March 7, 1999, and March 8

through 17, 1999.

24. Mr. Hicks claimed that he went on sick leave because

he was under a lot of stress and had an abnormal heartbeat. 8

Mr. Hicks never told Mr. Simonson that he was disabled, however,

nor did Mr. Hicks provide Mr. Simo nson with any medical

documentation to support the requests for sick leave and the

certificates Mr. Hicks submitted from his doctor. Mr. Hicks

did, however, ask Mr. Simonson the procedure for requesting a

light duty assignment; Mr. Simonson referred him t o the Human

Resources Department, but heard nothing more about a light duty

assignment for Mr. Hicks. Mr. Hicks never told Mr. Rodriguez

that he was disabled or requested a light duty assignment or any

other accommodation. 9

25. While he was out on sick l eave, Mr. Hicks's

supervisors received word that Mr. Hicks was working at another

job. An investigation was initiated, and an employment

verification inquiry was made to the United States Postal

Service. The United States Postal Service provided Metro Da de

Transit with an employment verification form referencing

March 26, 1999, as the date of the request; the document

confirmed that Mr. Hicks had been employed as a United States

Postal Service career employee since January 16, 1999, with a

base salary of $23,893.00 per year.

26. Mr. Hicks worked at the Pembroke Pines Post Office in

Broward County, Florida, as a custodian. He swept the floors

and cleaned the restroom.

27. Mr. Simonson prepared a formal Disciplinary Action

Report dated March 30, 1999, det ailing the results of the

investigation into allegations that Mr. Hicks was working for

the United States Postal Service during the time he was on sick

leave from his job with Metro Dade Transit. Mr. Hicks was

placed on administrative leave on March 19, 1 999. 10

28. The results of the investigation were discussed with

Mr. Hicks at a disciplinary hearing that was held on April 23,

1999. In a letter dated April 27, 1999, Othan Gilbert, then the

Manager of Treasury Services for Metro Dade Transit and

Mr. Simo nson's supervisor, advised Mr. Hicks that, after a

management review of the circumstances detailed in the

Disciplinary Action Report dated March 30, 1999, the decision

had been made to recommend that he be terminated as an employee

of Metro Dade Transit.

2 9. Mr. Hicks was terminated from his employment with

Miami Dade Transit effective May 13, 1999. Mr. Hicks was also

terminated from his position with the United States Postal

Service.

30. Mr. Hicks filed his Charge of Discrimination with the

FCHR on May 17, 1999, and the date on this document, handwritten

next to Mr. Hicks's signature, was May 7, 1999.

31. Mr. Hicks appealed the decision to terminate his

employment with Metro Dade Transit, and at the final hearing on

the appeal, Mr. Hicks entered into a stipulation with Miami - Dade

County whereby he agreed to resign in lieu of being terminated

and to withdraw a pending appeal of five - day suspension imposed

in January 1998. 11

Incidents Mr. Hicks considers discriminatory .

32. Mr. Hicks complained that, when he was placed on

administrative leave in late March 1999, Mr. Gilbert ordered

him, "with a nasty attitude," 12 to turn in his badge at the

Government Center. This required Mr. Hicks to drive all the way

downtown, when, according to Mr. Hicks, he could have turned in

his keys at the Northeast Bus Yard, which would have been more

convenient for Mr. Hicks.

33. Mr. Hicks also complained that Mr. Gilbert gave him an

order to go directly home after he turned in his badge.

Mr. Hicks interpreted this to mean that Mr. Gilbert had ordered

him not to stop on the way home. Mr. Hicks complained that, as

a result of Mr. Gilbert's order, Mr. Hicks was unable to stop to

use the bathroom on the way to his house.

34. Mr. Hicks also testified to a number of incidents that

allegedly occurred in 1995, 1996, 1997, and early 1998, that he

believes constituted harassment and created a hostile work

environment:

a. In January 1995, Mr. Hicks had an accident with a

county vehicle and damaged the top of a truck he was driving to

co llect change machines from buses. Mr. Hicks reported the

damage, but he received a record of counseling, which he thinks

was a little extreme under the circumstances.

b. On July 18, 1996, a computer technician went to the

Northeast Bus Yard where Mr. Hic ks was working; the computer

technician shut down the computers so he could work on them. As

a result, Mr. Hicks could not empty the fare boxes on the buses

that came into the yard, so the buses left the yard with full

fare boxes. Mr. Hicks feels aggriev ed because Mr. Rodriguez

wrote a memorandum dated July 19, 1996, to Mr. Simonson

complaining of continuous problems at the Northeast Bus Yard and

mentioning Mr. Hicks's failure to do his job as one cause of the

problems. 13 Mr. Hicks perceives this accusati on as a great

injustice because he worked the second shift, which was the

hardest shift; he chose the hardest shift because he was "into

the physical thing because I like to work hard." 14

c. On February 19, 1997, Mr. Rodriguez walked over to him

at the Nor theast Bus Yard with a "silly grin" on his face and

called Mr. Hicks "boy"; told Mr. Hicks he was tired of Mr. Hicks

questioning him every time he gave him an order; told Mr. Hicks

that "all you Black revenue collectors" do is complain,

especially Mr. Hick s; and told Mr. Hicks that he was going to do

his best to get Mr. Hicks fired. Mr. Rodriguez denied having

made any of these statements.

d. In May 1997, Mr. Hicks called to report that he was

sick. Mr. Hicks spoke with a fellow employee, and asked him t o

give the message to the supervisor that he was taking a sick

day. Mr. Rodriguez caused Mr. Hicks's pay to be docked for

eight hours' work and told him that employees were supposed to

speak with a supervisor when calling in sick. Mr. Hicks

questioned Mr . Rodriguez's action and Mr. Rodriguez "got very,

very nasty and we got into a yelling match." 15 Although

Mr. Hicks acknowledged that Mr. Rodriguez might be correct about

the rule, Mr. Hicks knew of other employees who just gave a co -

worker a message and w ere not docked any pay. Mr. Hicks claims

that, before docking his pay, Metro Dade Transit should have

sent around a memo stating the rule about reporting sick to a

supervisor. 16

e. In May 1997, Mr. Hicks heard rumors that "they" were

going to fire him bec ause he, or his attorney, filed a complaint

with the Equal Employment Opportunity Commission. 17 When he

confronted Mr. Gilbert about the rumors, Mr. Gilbert claimed he

did not know anything about it.

f. On June 3, 1997, Mr. Hicks was not able to take a lu nch

break because it was impossible for him to keep the schedule

that Mr. Rodriguez had established.

g. On June 6, 1997, Mr. Hicks forgot to turn in his keys

to a county vehicle, and they made a "big statement about it"

being against the rules even though they never made a "big

statement" when someone else forgot to turn in their keys. 18

h. On June 6, 1997, Mr. Hicks perceived that things had

gotten so bad on the job that he went to the Employee Assistance

Program for help. He was so stressed that, for ab out six

months, he did not report for work on weekends. Mr. Hicks

claims he missed these days of work to avoid Mr. Rodriguez when

neither Mr. Simonson nor Mr. Gilbert was working and could not

witness what Mr. Rodriguez was doing to him.

i. On June 18, 1 997, Mr. Hicks was at the Central Bus

Yard, where he was supposed to work from 7:30 p.m. to 9:00 p.m.

At around 8:00 p.m., Mr. Rodriguez drove up, and Mr. Hicks asked

Mr. Rodriguez if he had to stay at the bus yard until 9:00 p.m.

Mr. Rodriguez told him that "all you Blacks do is complain" and

that he would fire all "you people" if it was up to him.

Mr. Rodriguez denied having made these statements. 19

j. On December 31 of every year, Metro Dade Transit forced

employees to work emergency overtime. Mr. Hi cks, along with a

number of other employees, was forced to work a 10 - hour shift on

December 31, 1997, when he was only supposed to work eight

hours. Mr. Hicks always questioned the supervisor about this

emergency overtime because he believed that only the county

manager could call for emergency overtime and then only for an

act of God.

k. On January 20, 1998, Mr. Hicks was forced to "work out

of class" when he was told to log buses into the computer.

Mr. Hicks claims his job description did not include t his type

of work.

l. Mr. Rodriguez and "a couple of other guys" prepared

written statements attesting that Mr. Hicks threatened to kick

Mr. Rodriguez's "posterior" during an altercation between

Mr. Rodriguez and Mr. Hicks. Mr. Hicks denies having threate ned

Mr. Rodriguez on this occasion. 20

m. Mr. Hicks called in sick for one day, and he was

required to bring a doctor's letter even though the union

contract provided that an employee did not need a doctor's

letter unless taking three days' sick leave. 21

n. During the time that he was assigned to Government

Center, Mr. Rodriguez harassed him by ordering him to do

assignments that no other truck driver would normally do.

35. Mr. Hicks considered Mr. Rodriguez's harassment so

serious that he went to the docto r, and he claimed that he was

told he had developed ulcers. He also went to the Miami - Dade

County Employee Assistance Program for help because he believed

that his supervisors did not pay attention to him; Mr. Hicks

went to a psychiatrist at the recommend ation of a counselor at

the Employee Assistance Program. 22

Summary

36. Mr. Hicks failed to present persuasive evidence that

Mr. Rodriguez or anyone employed by Metro Dade Transit more

likely than not harassed him or created a hostile work

environment beca use Mr. Hicks is an African - American. It is

apparent from the evidence presented by both Metro Dade Transit

and Mr. Hicks that Mr. Hicks routinely questioned

Mr. Rodriguez's authority to direct his activities on the job

and that he sometimes responded to Mr. Rodriguez in a

belligerent and defiant manner. This behavior by Mr. Hicks,

rather than his race, was the cause of the friction between

Mr. Rodriguez and Mr. Hicks. Mr. Hicks's attribution of racist

remarks to Mr. Rodriguez is rejected as not credible given the

testimony of three African - American employees of Metro Dade

Transit that Mr. Rodriguez always treated them fairly and with

respect. Even assuming that the various incidents that

Mr. Hicks claims were discriminatory and tended to create a

hostil e work environment happened as Mr. Hicks described, the

incidents were unrelated to Mr. Hicks's race; were, for the most

part, simply the complaints of a disgruntled employee; and were

not so severe or pervasive that the conditions of Mr. Hicks's

employmen t were altered.

37. Mr. Hicks failed to present persuasive evidence to

establish that Metro Dade Transit more likely than not

discriminated against him on the basis of handicap. Mr. Hicks

provided no proof that he was either mentally or physically

handic apped. Furthermore, even if Mr. Hicks had established

that he was handicapped, the persuasive evidence establishes

that the only accommodation he requested was extended sick leave

from January through mid - March 1999, during which time he worked

for the Un ited States Postal Service. His termination was

unrelated to any real or perceived handicap but was, rather, the

result of his abuse of Metro Dade Transit's sick leave policy.

38. Mr. Hicks failed to present any evidence that he was

more likely than not the victim of retaliation by Metro Dade

Transit. The only discrimination complaint that Mr. Hicks filed

against Metro Dade Transit was signed and dated by Mr. Hicks

after he learned that Mr. Gilbert was recommending that he be

terminated, and the complain t was filed with the FCHR after

Mr. Hicks was terminated from his employment. Mr. Hicks

presented no evidence that Miami Dade Transit even had notice

that he intended to file a discrimination complaint.

CONCLUSIONS OF LAW

39. The Division of Administrat ive Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

40. Section 760.10, Florida Statutes (1999), part of the

Florida Civil Rights Act of 1 992, provided as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or pr ivileges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee , or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any man ner in

an investigation, proceeding, or hearing

under this section. [ 23 ]

41. Florida courts routinely rely on decisions of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Section 2000e et seq. , United States

C ode, ("Title VII"), when construing the Florida Civil Rights

Act of 1992, "because the Florida act was patterned after

Title VII." Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385, 1387 (11th Cir. 1998), citing, inter alia , Ranger

Insurance Co. v. Bal Harbor Club, Inc. , 549 So. 2d 1005, 1009

(Fla. 1989), and Florida State University v. Sondel , 685 So. 2d

923, 925, n. 1 (Fla. 1st DCA 1996) .

Timeliness

42. The first legal issue that must be addressed is the

timeliness of Mr. Hicks's Charge of Discr imination, which was

filed with the FCHR on May 17, 1999, and was apparently signed

by Mr. Hicks on May 7, 1999. Section 760.11(1), Florida

Statutes (1999), provided that "[a]ny person aggrieved by a

violation of ss. 760.01 - 760.10 may file a complaint wit h the

commission within 365 days of the alleged violation, . . ."

43. The 365 - day time limitation on filing a complaint

under Title VII is not jurisdictional but, rather, is a statute

of limitations. Greene v. Seminole Electric Cooperative , 701

So. 2d 64 6, 648 (Fla. 5th DCA 1997). And, because it is a

statute of limitations, it is subject to waiver, estoppel, and

equitable tolling. Zipes vans World Airlines, Inc. , 455

U.S. 385, 398 (1982); see also National Railroad Passenger Corp.

v. Morgan , 536 U. S. 101 (2002).

44. Metro Dade Transit preserved its claim that the

incidents alleged in the Charge of Discrimination and in his

Petition for Relief filed April were time - barred. It asserted

in the Respondent's Response to Initial Order that Mr. Hicks's

P etition for Relief should be dismissed because the incidents of

which he complained were time - barred. 24 Metro Dade Transit

reiterated at the beginning of the final hearing its request

that the Petition for Relief be dismissed as time - barred. A

ruling on t he request was deferred until entry of this

Recommended Order because Mr. Hicks complained of ongoing acts

of harassment and the failure to accommodate his disability, and

it was not clear on the face of the Charge of Discrimination

that the incidents Mr. Hicks complained of occurred outside the

365 - day time period.

45. Metro Dade Transit also raised throughout Mr. Hicks's

testimony its argument that Mr. Hicks was time - barred from

raising specific incidents that he considered discriminatory or

retaliatory. Mr. Hicks's exhibits and his testimony was,

however, received into evidence in order to establish the

approximate dates on which the incidents Mr. Hicks claims were

discriminatory and retaliatory took place.

46. As set forth in the findings of fact here in, most of

Mr. Hicks's complaints relate to incidents that occurred in

1995, 1996, and 1997; Mr. Hicks described in his testimony one

incident that he claims occurred in January 1998 and two

incidents that occurred in March 1999. The Charge of

Discrimina tion was filed more than 365 days after all but the

two March 1999 incidents, and it was, therefore, untimely as to

all but the March 1999 incidents.

47. Mr. Hicks also sought to raise the issue of the

termination of his employment with Metro Dade Transit on May 13,

1999, apparently claiming that Metro Dade Transit failed to

accommodate his purported disability. The evidence establishes,

however, that Mr. Hicks was advised on April 27, 1999, that

Mr. Gilbert was recommending the termination of his employm ent,

yet Mr. Hicks did not include in either his Charge of

Discrimination dated May 7, 1999, or in his Petition for Relief

filed April 2, 2002, any reference to this termination.

48. The court in Lieberman v. Miami - Dade County , 2000 WL

1717649 ( S.D. Fla. 2000), at page 4, held that a charge of

discrimination relating to a specific event must be included in

the Charge of Discrimination or the right to raise the claim in

judicial proceedings is waived. This rationale applies as well

to administrative proce edings before the Division of

Administrative Hearings because, in cases where the FCHR finds

no cause to believe that discrimination has occurred, the

complainant has recourse only to the Division of Administrative

Hearings. See Section 760.11(7), Florida Statutes (1999).

Based on the findings of fact herein, Mr. Hicks's claim at the

hearing that his termination was discriminatory was not included

in his Charge of Discrimination or Petition for Relief, and he

is, therefore, barred from claiming for the fi rst time in the

final hearing in this case that his termination was

discriminatory.

49. Nonetheless, because it was not possible to make a

determination of the timeliness of the Charge of Discrimination

without receiving Mr. Hicks's testimony and exhibits and in the

hope of achieving a full and complete resolution of Mr. Hicks's

claims of discrimination and retaliation, Mr. Hicks's claims of

discrimination on the basis of race and disability and

retaliation will be considered on their merits, without regar d

to the dates on which the alleged incidents occurred.

50. Mr. Hicks has the burden of proving by a preponderance

of the evidence that he was the victim of employment

discrimination, and he can establish a prima facie case of

discrimination either throug h direct evidence of discrimination

or through circumstantial evidence within the framework of the

analysis first articulated in McDonald Douglas Corp. v. Green ,

411 U.S. 792, 802 - 04 (1973). See Holifield v. Reno , 115

F.3d 1555, 1561 - 62 (11th Cir. 1997).

Discrimination based on race: Hostile work environment .

51. In this case, Mr. Hicks has presented no direct

evidence that he was discriminated against because of his race,

and he must, therefore, rely on the presumption set forth in

McDonald Douglas to establish a prima facie case of racial

discrimination and show that "(1) he belongs to a racial

minority; (2) he was subjected to adverse job action; (3) his

employer treated similarly situated employees outside his

classification more favorably; and (4) h e was qualified to do

the job." Holifield , 115 F.3d at 1562.

52. Mr. Hicks is African - American and, therefore,

satisfies the first prong of the McDonald Douglas analysis.

53. Although the typical employment discrimination case

involves adverse employmen t action related to hiring, firing, or

promoting an employee, Mr. Hicks has claimed that he was

subjected to a hostile work environment.

54. The court in Terry v. Ashcroft , 2003 WL 21666141 (2d

Cir. 2003), at page 14, defined the elements that must be pro ven

to establish a hostile work environment as follows:

In order to prevail on a hostile work

environment claim under Title VII, a

plaintiff must show that "the harassment was

'sufficiently severe or pervasive to alter

the conditions of the victim's e mployment

and create an abusive working environment.'"

Alfano v. Costello , 294 F.3d 365, 373 (2d

Cir. 20 02)(quoting Perry v. Ethan Allen ,

Inc., 115 F.3d 143, 149 (2d Cir. 19 97)); see

also Oncale v. Sundowner Off shore Serv.,

Inc. , 523 U.S. 75, 78 (19 98) (stating that a

hostile work environment is created "[w]hen

the workplace is permeated with

discriminatory intimidation, ridicule, and

insult that is sufficiently severe or

pervasive to alter the conditions of the

victim's employment and create an abusive

working environment."). We have explained

that "[t]his test has objective and

subjective elements: the misconduct must be

'severe or pervasive enough to create an

objectively hostile or abusive work

environment,' and the victim must also

subjectively perceive that environment to be

abusive." Alfano , 294 F.3d at 374 (quoting

Harris v. Forklift Sys., Inc. , 510 U.S. 17,

21 (19 93). Among the factors to consider

when determining whether an environment is

sufficiently hostile are "the frequency of

the discriminatory conduct; its severity;

whether it is physically threatening or

humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with

an employee's work performance." Harris ,

510 U.S. at 23. In determining whether a

hostile environment exists, we must look at

the "totality of the circumstances."

Richardson , 180 F.3d at 437 - 38. "As a

general rule, incidents must be more than

'episodic; they must be sufficiently

continuous and concerted in order to be

deemed pervasive.'" Alfano , 294 F.3d at 374

(quoting Perry , 115 F.3d at 14 9). . . .

55. Based on the findi ngs of fact herein, Mr. Hicks's

proof is not sufficient to establish that he was subjected to a

hostile work environment at Metro Dade Transit. Mr. Hicks has,

therefore, failed to establish that he suffered an adverse

employment action and, consequently, has failed to establish a

prima facie case of employment discrimination based on his race.

Discrimination based on handicap: Failure to accommodate .

56. Although it is not clear from his testimony, Mr. Hicks

apparently claims that Metro Dade Transit dis criminated against

him by terminating his employment rather than accommodating his

handicap by assigning him to light duty work.

57. In order to establish a prima facie case of employment

discrimination based on disability under the Florida Civil

Rights A ct, Mr. Hicks must, at a minimum show that he is

handicapped, that is, he must show that he "is a person with a

disability." Smith v. Avatar Properties, Inc. , 714 So. 2d 1103,

1106 (Fla. 5th DCA 1998).

58. The FCHR has defined "handicap" in Rule 60Y - 3.001(14),

Florida Administrative Code , as follows:

"Handicap" means a condition that prevent s

normal functioning in some way; a person

with a handicap does not enjoy the full and

normal use of his or her sensory, mental, or

physical faculties.

59. The court in Razner v. Wellington Regional Medical

Center , 837 So. 2d 437 (Fla. 4th DCA 2002), rel ied on the

definition of "handicap" found in the Florida Fair Housing Act,

Section 760.22(7), Florida Statutes, in a case involving an

employment discrimination claim. Section 760.22(7), Florida

Statutes (1999), defined "handicap" in pertinent part as

fol lows:

"Handicap" means:

(a) A person has a physical or mental

impairment that substantially limits one or

more major life activities, or he or she has

a record of having, or is regarded as

having, such physical or mental impairment.

60. Based on the fi ndings of fact herein, Mr. Hicks has

failed to establish that he is a person with a disability, or

"handicap," as that term is defined in Rule 60Y - 3.001(14),

Florida Administrative Code , or in Section 760.22(7), Florida

Statutes (1999). Mr. Hicks has, therefore, failed to establish

a prima facie case that Metro Dade Transit discriminated agai nst

him on the basis of a handicap.

Retaliation

61. The court in Goldsmith v. City of Atmore , 996 F.2d

1155, 1162 - 63 (11th Cir. 1993), observed that "[t]he burden of

proof in Title VII retaliation cases is governed by the

framework established in McDonne ll Douglas Corp. v. Green ,

411 U.S. 792 (1973)." The court described that burden as

follows:

In order to prevail, the plaintiff must

first establish a prima facie case by

showing (1) statutorily protected

expression, (2) adverse employment action,

and (3) a causal link between the protected

expression and the adverse action. . . .

Goldsmith , 996 F.3d at 1162 - 63 (citations omitted).

62. It is difficult to discern from the Charge of

Discrimination, the Petition for Relief, or the evidence he

presented du ring the hearing the basis for Mr. Hicks's claim

that Metro Dade Transit retaliated against him in violation of

Section 760.10(7), Florida Statutes (1999). Based on the

findings of fact herein, Mr. Hicks engaged in "statutorily

protected expression" only once, when he filed his Charge of

Discrimination against Metro Dade Transit with the FCHR.

Mr. Hicks, however, filed this charge with the FCHR after his

employment with Metro Dade Transit was terminated, and he signed

and dated the Charge of Discriminatio n form after he was advised

that a recommendation that he be terminated would be made.

Mr. Hicks presented no evidence that anyone at Metro Dade

Transit was aware that he intended to file a discrimination

complaint at the time the decision to terminate hi m was made.

Accordingly, Mr. Hicks has failed to establish a prima facie

case of retaliation. 25

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Pet ition for Relief filed by Eugene Hicks

against Treasure Service/Metro Dade Transit and Ron Jones.

DONE AND ENTERED this 1st day of August, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 1st day of August, 2003.

ENDNOTES

1 / Metro Dade Transit is currently known as Miami - Dade Transit

Agency.

2 / The FCHR's failure to issue its Determination: No Cause

within the 180 days specified in Section 760.11(3), Florida

Statutes (1999), was rendered moot when Mr. Hicks filed his

Petition for Relief with the FCHR rather than filing an action

in the circuit court.

3 / Metro Dade Transit was represented in this matter by the

Miami - Dade County Attorney's office.

4 / Section 760.11(7), Florida Statutes (1999), provides in

pertinent part:

If the commission determines that there is

not reasonable ca use to believe that a

violation of the Florida Civil Rights Act of

1992 has occurred, the commission shall

dismiss the complaint. The aggrieved person

may request an administrative hearing under

ss. 120.569 and 120.57, but any such request

must be made wi thin 35 days of the date of

determination of reasonable cause . . . .

If the aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

5 / Metro Dade Transit also filed Respondent's Response to

Initial Orde r, in which it asserted that, in addition to

Mr. Hicks's having filed his Petition for Relief outside the 35 -

day time period prescribed in Section 760.11(7), Florida

Statutes, Mr. Hicks's Petition for Relief related to activities

that had occurred more tha n 365 days prior to the date on which

he filed the petition and should, therefore, be dismissed

because it is time - barred. No ruling was made on this issue in

the Recommended Order of Dismissal.

6 / Neither party introduced Mr. Hicks's annual evaluation for

1998, which would have been completed in January 1999.

7 / According to Mr. Clodfelter, the main job of the employees

working as "UT - 2's" was to drive to each of the three bus yards

and give the revenue collectors working at the bus yards a

break.

8 / It is noted that Mr. Hicks introduced into evidence as part

of Petitioner's Exhibit 1 a Certificate for Return to Work

issued by Andover Medical Group and dated March 9, 1999, in

which it was stated that Mr. Hicks would be able to return to

work on March 15, 1999. There is no indication in the record

that Mr. Hicks ever sent this certificate to Metro Dade Transit.

9 / Medical records submitted by Mr. Hicks as part of

Petitioner's Exhibit 1 reveal that, on January 13, 1999,

Mr. Hicks had a "multistage tr eadmill exercise tolerance test"

for evaluation of Mr. Hicks's reported chest pains. The test

results established that there was a "low probability of

significant coronary artery disease" and that Mr. Hicks had an

"[e]xcellent exercise tolerance" for his age.

10 / Mr. Hicks apparently returned to work on March 18, 1999.

11 / Mr. Hicks was suspended for five days without pay in

January 1998 for incidents that took place in May and June 1997,

based on a Disciplinary Action Report completed by Mr. Rodriguez

o n October 3, 1997. The discipline was imposed for a number of

incidents: On May 30, 1997, Mr. Hicks was away from his post

without authorization for one hour and became belligerent and

verbally abusive to Mr. Rodriguez when Mr. Rodriguez confronted

Mr. H icks on his return from the unauthorized break; during the

confrontation, Mr. Hicks used profanity and threatened to "kick

your [Mr. Rodriguez's] ass." On May 17, 1997, Mr. Hicks did not

follow procedure when he called in sick one day; rather than

speakin g directly with his supervisor, Mr. Hicks asked one of

his co - workers to deliver the message to Mr. Rodriguez that he

was taking a sick day. On June 6, 1997, Mr. Hicks violated

procedures by failing to sign in the keys to his Miami Dade

Transit vehicle at the end of his shift, and he took the keys

home with him.

12 / Transcript at page 84.

13 / See Petitioner's Exhibit 7.

14 / Transcript at page 90.

15 / Transcript at page 85.

16 / This is Mr. Hicks's version of an incident included in the

Disciplinary Act ion Report of October 17, 1997, that is

discussed in endnote 11.

17 / There is no evidence in the record to indicate that such a

complaint was ever filed.

18 / Transcript at page 99. This is Mr. Hicks's version of an

incident included in the Disciplinary Action Report of October

17, 1997, that is discussed in endnote 11.

19 / This is Mr. Hicks's version of an incident included in the

Disciplinary Action Report of October 17, 1997, that is

discussed in endnote 11.

20 / This is Mr. Hicks's version of an inci dent included in the

Disciplinary Action Report of October 17, 1997, that is

discussed in endnote 11.

21 / Mr. Hicks was a member of the Transit Workers Union.

22 / Mr. Hicks testified that he is still under the care of a

psychiatrist for chronic depressio n and is taking medication,

"due to the incident that happened to me on the job."

Transcript at page 31.

23 / In his Petition for Relief filed with the FCHR on April 2,

2002, Mr. Hicks stated as the only basis of his claim for

discrimination that Metro Da de Transit had violated

Section 760.10(7), Florida Statutes, which, simply stated,

relates to retaliation against a person who has opposed an

unlawful employment practice. In the narrative attached to the

Petition for Relief, however, Mr. Hicks refers to harassment

that consisted of his being singled out and treated differently

from other employees and to the failure of Metro Dade Transit to

accommodate his disability.

In the Charge of Discrimination that he filed with the FCHR

on May 17, 1999, Mr. H icks asserted that he had been

discriminated against on account of his race and disability and

that he had been the subject of retaliation. Mr. Hicks

specifically referred in the Charge of Discrimination to

harassment from his supervisor, Mr. Rodriguez, w hich created a

hostile work environment, and he also asserted that

Mr. Rodriguez failed to make an accommodation for his

disability. Finally, Mr. Hicks asserted that Mr. Gilbert and

Mr. Simonson were aware of the ongoing harassment and failed to

rectify t he situation. For purposes of this Recommended Order,

Mr. Hicks's charges of discrimination will be presumed to

include discrimination based on race and disability, as well as

retaliation.

24 / The FCHR's Rule 60Y - 5.008(5), Florida Administrative Code,

re quires that respondents file an answer to a petition for

relief from an unlawful employment practice within 20 days after

it receives notice that the petition has been filed. Miami Dade

Transit did not have the opportunity to present the issue of

timeline ss to the FCHR in an answer to the Petition for Relief

because the Petition for Relief in this case was filed with the

FCHR on April 2, 2002, and transferred by the FCHR to the

Division of Administrative Hearings on April 5, 2002. The

Response to the Init ial Order of the Division of Administrative

Hearings was Miami Dade Transit's first opportunity to raise

this issue.

25 / Other than his termination, the only adverse employment

action proven by Mr. Hicks was the five - day suspension without

pay imposed in January 1998; there is no proof of any causal

connection between this disciplinary action and the exercise of

protected expression by Mr. Hicks.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Hum an Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Eugene Hicks

11846 Northwest 13th Street

Pembroke Pines, Florida 33026

Eric Rodriguez, Esquire

Office of Dade County Attorney

111 Northwest First Street, Suite 2810

Miami, Florid a 33128 - 1930

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days f rom 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.