02-002748 Cynthia Keys vs. First Health Services Corporation Status: Closed Recommended Order on Friday, April 25, 2003.

Summary: Respondent articulated legitimate, non-discriminatory reasons for not promoting, then terminating, an employee. Hostile work environment based on discriminatory motive not established. Recommend Petition for Relief be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA KEYS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2748

)

FIRST HEALTH SERVICES )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing w as held pursuant to notice, on December 2

through 4, 2002, in Tallahassee, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Fred H. Flowers, Esquire

Flowers & White, LLC

1500 Mahan Drive, Suite 230

Tallahassee, Florida 32308

For Respondent: John E. Duvall, Esquire

Ford & Harrison, P.A.

Post Office Box 41566

Jacksonville, Florida 32203

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on August 9, 2000.

PRELIMINARY STATEMENT

On August 9, 2002, Petitioner, Cynthia Keys, filed a Charge

of Discrimination with the Florida Commission on Human Relations

(FCHR) which alleged that First Health Services Corporation

violated Section 760.10, Florida Statutes, by discriminating

against her on the basis of race and gender. The Charge of

Discrimination alleged hostile work environment, wrongful denial

of promotion, and wrongful termination.

The allegations were investigated and on April 25, 2002,

FCHR issued its determination of "cause" and Notice of

Determination: Cause. FCHR's determination of cause was based

solely on race and found that there was insufficient evidence to

establish a charge of discrimination based on gender.

A Peti tion of Relief was filed by Petitioner on May 30,

2002. The Petition for Relief referenced discrimination based

upon race but did not reference gender discrimination. The

Petition for Relief raised for the first time "disparate

treatment pattern" in addi tion to her allegations of hostile

work environment, denial of promotion, and wrongful termination.

FCHR transmitted the case to the Division of Administrative

Hearings (Division) on or about July 11, 2002. A Notice of

Hearing was issued setting the case for formal hearing on

September 18 through 20, 2002. On August 20, 2002, the parties

filed a Joint Motion to Continue Hearing which was granted. The

hearing was rescheduled for October 28 through 30, 2002. The

parties filed a Second Joint Motion to Con tinue Hearing which

was granted. The hearing was rescheduled for December 2

through 4, 2002.

During the hearing, a Motion by Nonparty for Protective

Order Quashing Subpoena Ad Testificandum was filed by the

Florida Commission on Human Relations seeking to quash a

subpoena issued to one of its employees, Katina Hinson. Oral

argument was heard on the motion. The motion was granted and

the subpoena quashed.

At hearing, Petitioner presented the testimony of nine

witnesses: Neil Alspach; Beverly Williams; Do uglas Keel; Paul

Shelley; James Gilbert; Melvin Lofton; Auguista George; Alice

Wilson; and Petitioner, Cynthia Keys. Petitioner offered

Exhibit Nos. 1 through 16, which were admitted into evidence

with the exception of Exhibit No. 8, which was proffered.

Respondent presented the testimony of two witnesses, Douglas

Keel and Paul Shelley. Respondent offered into evidence Exhibit

Nos. 1 through 13, which were admitted into evidence.

A Transcript, consisting of five volumes, was filed on

January 10, 2 003. On February 3, 2003, the parties filed a

Joint Motion to Extend Deadline for Filing Recommended Orders.

The motion was granted. On February 24, 2003, the parties filed

another Joint Motion for Extension of Time to File Proposed

Recommended Orders. The motion was granted. On March 11, 2003,

Petitioner filed a Stipulated Motion for Extension of Time to

File Proposed Recommended Order which was granted. Proposed

Recommended Orders were filed by the Petitioner and Respondent

on March 13, 2003, and Ma rch 11, 2003, respectively, and have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American woman who was

employed by Respondent from September 1998 until her termination

on August 4, 2000.

2. Respondent, First Health Services Corporation (First

Health), is an employer within the meaning of the Florida Civil

Rights Act. Part of First Health's business is providing

Medicaid billing and claims services for state and local

governments. First He alth opened a Tallahassee office in 1998.

3. Petitioner received a bachelor's degree in 1984 in data

processing. Prior to working at First Health, Petitioner worked

in the area of computer programming for approximately 15 years

for the Department of Labo r and Leon County Schools. Petitioner

was hired by First Health as a computer program analyst in its

Tallahassee office. In that position, she assisted with

computer programming and systems analysis tasks relating to

Medicaid claims for various public en tities.

4. The State of New York contract or project was composed

of two areas of responsibility: generating claims for services

rendered and generating documents and records relating to

reimbursement from third parties for claims, commonly referred

to a s "third party liability." Petitioner was assigned to the

third party liability portion of that contract, although the

record is unclear as to when she was assigned to the New York

account.

5. When Petitioner first started her employment with First

Healt h, there was no office manager for the Tallahassee office.

Dennis O'Donahue eventually became the office manager. Woody

Wise was a team leader for the New York account but later left

that position. After Wise no longer held the team lead

position, Petit ioner functioned in the capacity of team lead for

the third party liability segment of the New York account. She

was never officially designated as team lead or as acting team

lead. Her job titles while at First Health were computer

programmer analyst an d systems computer programmer analyst.

6. At some point during the period of time that Petitioner

was unofficially acting as team lead of the third party

liability segment of the account, O'Donahue met with her and

another coworker, Beverly Williams. Dur ing that meeting,

O'Donahue offered the team lead position for the third party

liability segment of the New York account to Petitioner.

O'Donahue was removed as office manager and was replaced by Doug

Keel in March or April of 2000.

7. O'Donahue was repl aced because there were some problems

with the New York account dealing with customer satisfaction and

production that was perceived by First Health's management as a

management problem. As a result of these problems, the client

was dissatisfied and the c ontract was in jeopardy.

8. In May of 2000, First Health posted an advertisement

for a team lead position for the New York account. This

advertisement contemplated a position that would combine the

claims and third party liability aspects of the New York

account. The advertisement listed the following under the

heading, "Qualifications":

- Ability to react to user community

with support and assistance in everyday

needs.

- Ability to effectively direct staff

with minimal amount of supervision.

- Motivate wit h excellent interpersonal

skills.

- Ability to deal professionally with

internal and external customers.

- Full working knowledge of system

development methods, tools, and techniques.

9. Within the Tallahassee office, Petitioner and another

African - America n employee, Auguiste George, applied for the

position. Neil Alspach, a Caucasian, also applied. First

Health initially hired Alspach in January 2000 as a senior

programmer analyst in its Richmond, Virginia, office, where he

worked on a Medicaid project f or the state of Virginia. He

holds a degree in management information systems and has worked

in the data processing field since 1985. His data processing

experience includes having worked for companies such as Sony and

Unisys.

10. Alspach was offered the job as team leader and moved

to Tallahassee to assume that position.

11. Paul Shelley is Director of Human Resources for First

Health and is also located in Richmond, Virginia. While he did

not make a formal ranking of these applicants, he voiced an

opinion as to how he viewed the applicants. He "ranked"

Alspach, first; George, second; and Petitioner, third.

12. Doug Keel was office manager at that time and is still

in that position. He conducted interviews of Petitioner and

George and forwarded their resumes to Richmond for review. He

made no recommendation as to any of the candidates. He was not

the final decision - maker with respect to Alspach's getting the

job of team lead.

13. The decision to promote Alspach to the team lead

position was m ade by Mark Therianos, who worked for Paul

Shelley, and Bev Quick, a vice president of First Health. Both

Therianos and Quick are located in the Richmond, Virginia,

office.

14. Based upon the evidence presented, Petitioner and

Alspach were equally qualif ied for the job.

15. As Alspach analyzed the New York account, he

discovered that on two consecutive weekends in April 2000, two

programs suffered abnormal terminations referred to as "ab

ends." Alspach discovered that Petitioner had made changes to

the programs which would have addressed and prevented the

specific ab ends, but that she never placed the changes "into

production" to effectuate the changes and modify the programs.

Ab ends can be serious concerns as they can cause systems to

stop running. Ab ends can result from different causes, but

Petitioner admitted that she had made a mistake regarding not

placing the changes into production.

16. Alspach perceived Petitioner's failure to place

changes into production as a violation of First Health's

p olicies and procedures. Through a series of e - mails, one which

is time - stamped by the computer as being sent immediately after

the meeting, Alspach notified Petitioner that there would be a

meeting to discuss concerns about production problems the

afterno on of July 11, 2000.

17. The July 11, 2000, meeting was attended by Petitioner,

Alspach, and Keel. Although the evidence is conflicting as to

exactly what happened during this meeting, the weight of the

evidence indicates that Alspach yelled at Petitione r about the

mistakes that occurred and acted in a rude, intimidating manner

towards her. His behavior was such that she became afraid of

Alspach. First Health acknowledges that his behavior was

unprofessional. However, the evidence does not establish th at

Alspach's behavior was racially related.

18. Petitioner was very upset as a result of the meeting.

She sent an e - mail to and telephoned Quick to tell her about the

meeting. Quick responded that she was on medical leave and

requested that Petitioner i nform their Human Resources

department about her concerns so that the matter would not "lay

idle" while she was on medical leave. Quick also informed

Petitioner that she had discussed the matter with Keel and

alerted Shelley, Human Resource Director.

19. Petitioner also discussed her concerns with Keel who

was her office manager. She informed Keel in an e - mail that she

was "willing to meet with you as long as its not with Neil or

behind closed doors." He replied in an e - mail that he attempted

to call h er but "got voice mail," that he spoke with Shelley

about the matter and that "we are working toward resolution".

20. Petitioner also made a complaint directly to Shelley

about Alspach's behavior. Petitioner complained to Shelley that

she was continuin g to receive e - mails from Alspach, although she

acknowledged at hearing that the e - mails were not threatening

and were all business related.

21. Shelley spoke to Petitioner on the telephone and sent

her the following e - mail:

Cynthia,

To follow up on our t elephone conversation

of earlier today, this email requests your

cooperation in resolving the issues between

you and Neil Alspach. Specifically, you

need to meet with Neil and Doug Keel to

discuss the situation and address the

issues. You indicated to me this morning by

telephone that you are not willing to meet

with Doug and Neil.

Doug, the manager in charge of the

Tallahassee office, has spoken with all

members of the team for which Neil is the

Team Leader to identify issues regarding

Neil's management style and behavior toward

colleagues. In addition, Doug has

counselled [sic] Neil regarding his

management style, his behavior and the way

he comes across to colleagues.

It is appropriate for Doug and Neil to meet

with you to discuss these issues, with the

goal of resolution. It is essential that

the Tallahassee team work together and

resolve issues so the team can function

properly and serve the client in the manner

expected.

You informed me and Doug in separate

conversations this morning that you are not

willing to meet with Doug and Neil to

discuss these issues. This is not

acceptable and I ask that you reconsider

your position over the weekend and be

prepared to meet with Doug and Neil on

Monday morning, July 31. If you continue to

refuse to meet with Doug and Neil, the two

management colleagues in the Tallahassee

office, we will have to terminate your

employment, which we do not want to do.

We have addressed the issues you have raised

about the unprofessional way Neil treated

you and spoke to yo u. It is essential that

these issues be addressed with you in a

meeting and resolved in order to move

forward and have an effective team with

professional and appropriate business - like

relationships in the future by all

concerned.

22. Petitioner replied to this e - mail that she was willing

to meet with Doug Keel, but that she would not meet with

Alspach.

23. At this point, there was an unfortunate lack of

communication or miscommunication. Shelley was of the firm

belief that Petitioner did not ever meet with Doug Keel in an

attempt to resolve this matter. His belief that she refused to

meet with Keel "was a big issue with me," and greatly influenced

his decision to inform Keel that he should terminate Petitioner.

He acknowledged that had he been aware that she had met with

Keel, he would have taken additional measures to attempt to

resolve this matter by personally intervening in the process.

24. Shelley also learned that Petitioner had not attended

several weekly Friday staff meetings presumably bec ause Alspach

would be present at those meetings. Shelley had been told by

Keel that Alspach's behavior at the July 11, 2000, meeting had

been stern but not hostile, as Petitioner had described. As a

result of his belief that Petitioner was not willing to

cooperate with management to resolve this matter and all of the

circumstances, Shelley consulted with a colleague in Human

Resources located in another city as well as with Quick. The

consensus was that Petitioner should be terminated. Shelley

made the decision to terminate Petitioner and informed Keel that

he should terminate Petitioner on August 4, 2000. Petitioner

was terminated on August 4, 2000. Alspach was not involved in

the decision to terminate Petitioner.

25. Shelley's decision to direct Dou g Keel to terminate

Petitioner was primarily based on his belief that she failed to

cooperate by not meeting with Alspach and, in particular, with

Keel; failure to attend weekly team meetings for four weeks; and

his belief that the matter needed to come to resolution, as

First Health was struggling with client dissatisfaction on the

New York account.

26. There was no evidence presented that establishes or

even suggests that Shelley's decision to direct Keel to

terminate Petitioner was based on race.

27. Auguiste George resigned from First Health in April

2001. George believes he overheard "what seemed like

[Alspach's] voice" speaking to Petitioner in a "loud, stern

voice" during a meeting in the conference room. However, George

did not hear the co ntent of the remarks and never heard Alspach

say anything of a racial character when addressing employees,

including Petitioner. 1/

28. Keel acknowledged that Alspach's subordinate

employees, both Caucasian and African - American, have complained

that Alspach was a "micro - manager" and "too direct" as a

manager. This sentiment was not limited to members of any

particular race. However, Keel perceived that those traits

represented Alspach's philosophy that he wanted people to be

held accountable for th eir work and wanted the work performed

properly. Alspach has been counseled concerning his management

style by Keel and by Shelley.

29. Significantly, Petitioner admitted that Alspach's

management style impacted the entire New York team regardless o f

the race of members.

30. In her various verbal and written interactions with

First Health management, Petitioner never made a complaint of

race discrimination pertaining to her employment situation,

including her interactions with Shelley. Fin ally, Petitioner

acknowledged that Alspach never made any racial comments towards

her or any other employee.

31. First Health has Affirmative Action and Equal

Opportunity policies and had them in place during 2000.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

Sections 120.569 and 120.57, Florida Statutes.

33. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

race.

34. In discrimination cases alleging disparate treatment,

the P etitioner generally bears the burden of proof established

by the United States Supreme Court in McDonnell Dougl as v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). 2/ Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , the Petitioner, is able to make

out a prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non - discriminatory

explanation for the employment action. See Department of

Corrections v. Chandl er , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id . Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). "The employee

must satisfy this burden by showing directly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief." Department of

Corrections v. Chandler , supra at 1186; Alexander v. Fulton

County, Georgia , supra . Petitioner has not met this burden.

35. In a failure to promote context, to establish a prima

facie c ase of discrimination, the charging party must prove that

(1) she is a member of a protected minority; (2) that she was

qualified and applied for the promotion; (3) that she was

rejected despite these qualifications; and (4) other equally or

less qualified employees who are not members of the protected

minority were promoted. Lee v. GTE Florida, Inc. , 226 F.3d

1249, 1253 (11th Cir. 2000), relying upon Taylor v. Runyon , 175

F.3d 861, 866 (11th Cir. 1999).

36. Petitioner has met her burden of proving a pri ma facie

case regarding the issue of promotion. She is a member of a

protested class, she was qualified for and applied for the

promotion, and an equally qualified employee who is not a member

of a protected class was promoted.

37. Respondent has met its burden of production by

articulating a legitimate, non - discriminatory explanation of the

employment action taken. Respondent presented ample evidence

that its motivations in promoting Alspach were reasonable and

were not racially motivated. Alspach was qualified for the job.

Given the prior managerial problems regarding the New York

project and First Health's concerns regarding client

dissatisfaction placing the contract in jeopardy, it was not

unreasonable for First Health to elect to bring in a qualif ied

employee from another office to take over this management

position.

38. Where a respondent proffers a reasonable motivation

for the promotional decision, it is not up to a court to

question the wisdom of the employer's reasons. Lee v. GTE

Florida Inc ., supra , relying upon Combs v. Plantation Patterns ,

106 F.3d 1519, 1543 (11th Cir. 1997); Damon v. Fleming

Supermarkets of Florida, Inc. , 196 F.3d 1354, 1361 (11th Cir.

1999)(emphasizing that courts "are not in the business of

adjudging whether employment decisions are prudent or fair").

In a failure to promote case, a plaintiff

cannot prove pretext by simply showing that

she was better qualified than the individual

who received the position that she

wanted . . . [D]isparities in

qualifications are not enough in and of

themselves to demonstrate discriminatory

intent unless those disparities are so

apparent as virtually to jump off the page

and slap you in the face.

Denney v. City of Albany , 247 F.3d 1172, 1187 (11th Cir. 2001),

quoting Lee v. GTE F lorida, Inc. , supra at 1253 - 54. There are

no disparities between Petitioner's qualifications and those of

Alspach that would "jump off the page and slap a person in the

face."

39. Petitioner has not met her burden of showing that a

discriminatory reason m ore likely than not motivated the

decision, or by showing that the proffered reason for the

employment decision is not worthy of belief. Consequently,

Petitioner has not met her burden of showing pretext.

40. In summary, Petitioner has failed to carry h er burden

of proof that Respondent engaged in racial discrimination toward

Petitioner when it denied her the promotion to team leader.

41. As to Petitioner's discriminatory discharge claim, to

establish a prima facie case, she must show that she is a membe r

of a protected class (e.g., African - American); that she was

qualified for the job from which she was fired; and, that

employees who are not members of the protected class performed

their duties in a similar fashion but were not terminated. See

McDonald , supra .

42. Petitioner failed to present any evidence regarding a

similarly situated Caucasian employee that First Health retained

though that employee committed misconduct similar to Petitioner.

Paul Shelley indicated that Petitioner was terminated for t he

reasons previously described. Petitioner has not identified any

employee outside of the protected class who committed similar

conduct, and thus, she has failed to establish a prima facie

case of discriminatory discharge. See , for example, Anderson v.

WBMG - 4 , 253 F.3d 561 (11th Cir. 2001)(plaintiff's burden to

establish proof of similarly situated comparator employees).

43. Applying the McDonald analysis, Petitioner did not

meet her burden of establishing a prima facie case of

discriminatory discharge. Even assuming that Petitioner had

demonstrated a prima facie case of discriminatory discharge,

First Health demonstrated a legitimate, non - discriminatory

reason for her termination; that the decision maker (Paul

Shelley) believed that Petitioner refused to meet with Keel and,

therefore, failed to cooperate with management in resolving her

issues; failure to attend weekly team meetings; and a concern

about resolving the issue because of client dissatisfaction.

Petitioner did not meet her burden of proving pretext to negate

these legitimate reasons. Petitioner admitted that she would

not meet with Alspach ever again, and admitted that she did not

attend staff meetings after July 11, 2000.

44. Moreover, Shelley's admission that had he known that

Petitioner was willing to meet with Keel and did meet with Keel,

he would have taken the matter to the next step, meaning he

would not have recommended termination at that point in time,

does not support Petitioner's claim of race discrimination.

Shelley's mistake or misunderstanding in this regard does not

establish pretext. Rather, it supports Respondent's assertion

that the reasons were legitimate, although mistaken in part.

"The employer may fire an employee for a good reason, a bad

reason, a reason based on e rroneous facts , or for no reason at

all, as long as its action is not for a discriminatory reason."

(Emphasis supplied.) Department of Corrections v. Chandler ,

supra at 1187, quoting Nix v. WLCY Radio/Rahall Communications ,

738 F.2d 1181, 1187 (11th Cir. 1984).

45. As to the hostile work environment charge,

Petitioner's subjective belief that rude conduct was motivated

by unlawful discriminatory intent is generally insufficient to

establish a violation of Title VII, regardless of the hostility

of the con duct. For example, in Triplett v. Electronic Data

Systems , 710 F.Supp. 667 (W.D. Mich. 1989), an employee

"believed in [her] heart" that her supervisor was discriminating

against her when he would continuously identify shortcomings in

her work, would neve r look at her or talk to her casually, and

was always very short with her. Id. at 671 - 72. Yet upon

analysis of these claims, the court ruled that the plaintiff's

observations and opinions were insufficient to establish

violation of Title VII. Id.

Whil e plaintiff may rightly complain that

she was treated discourteously by [the

defendant], no facts have been presented to

support a finding that the tension was

related to racial difference. The statutes

under which plaintiff seeks redress for race

discrim ination are designed for that limited

purpose, they do not provide a shield

against all harsh treatment in the work

place.

Id. , at 672 citing McCollum v. Bolger , 794 F.2d 602, 610 (11th

Cir. 1986) (personal animosity is not the equivalent of unlawful

haras sment and is not proscribed by Title VII and a personal

feud cannot be turned into a discrimination case merely by

accusation).

46. In the instant case, Petitioner has not established

that the harsh treatment she received from Alspach was motivated

by raci al considerations. Testimony was consistent that Alspach

never used any racially derogatory remarks. Petitioner never

complained to any First Health manager that the treatment she

was receiving from Alspach was based upon racially

discriminatory motives. Petitioner admitted to Shelley, in an

e - mail, that Alspach's "rage" was affecting the entire New York

project team, which consisted of white and African - American

employees at the time. Finally, Keel testified that he has

received complaints from employ ees of all races about Alspach's

direct and controlling management style, not just from

Petitioner.

47. Petitioner has not produced any competent evidence

that she was subject to a hostile work environment created by

racial harassment. While working for a "micromanaging" and

"harsh" supervisor may create an intolerable working

environment, such a scenario is not actionable under Title VII,

or under the Florida Civil Rights Act, where all employees are

submitted to the same harsh treatment. It is not withi n the

authority of this tribunal to second guess First Health's

tolerance of Alspach's rude behavior to its employees.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Flor ida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 25th day of April, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judg e

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 Hearin gs

this 25th day of April, 2003.

ENDNOTES

1/ At hearing, Petitioner presented testimony from witnesses

Williams, Gilbert, and George attempting to establish a pattern

of discrimination. "Disparate treatment pattern" was not raised

in the initial charg e of discrimination. Further, Petitioner

presented testimony attempting to establish hostile work

environment toward other African - American employees. The Charge

of Discrimination alleges hostile work environment as it relates

to Petitioner individually, not toward others. The

Determination: Cause issued by FCHR only references

discrimination based on race involving Petitioner, not others in

her workplace: ". . . that she suffered adverse employment

action in the form of a denial of promotion and hostil e work

environment . . . ." Accordingly, although Petitioner presented

evidence in this regard, this Recommended Order will not address

the allegation of a pattern of disparate treatment or hostile

work environment as it related to others. The Division o f

Administrative Hearings has no jurisdiction to hear allegations

of discriminatory conduct which FCHR has not investigated or

made a determination as to reasonable cause. Natasha Tulloch v.

Wal - Mart Super Center , DOAH Case No. 00 - 4935, Final Order issued

November 30, 2001, FCHR Order No. 01 - 065. While the

Determination: Cause did not reference wrongful termination, the

Charge of Discrimination clearly did. Accordingly, the

allegation of wrongful termination based upon racial

discrimination is addressed herein.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994) .

COPIES FURNISHED :

Fred H. Flowers, Esquire

Flowers & White, LLC

1500 Mahan Drive, Suite 230

Tallahassee, Florida 32308

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

John E. Duvall, Esquire

Ford & Harrison, P.A.

Post Office Box 41566

Jacksonville, Florida 32203

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 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.