02-003498 Lindaura Ellis vs. Village Methodist Day School Status: Closed Recommended Order on Monday, December 1, 2003.

Summary: Complaint of discrimination on the basis of national origin (Hispanic) demonstrated that there was a failure to hire as a teacher`s aide but failed to show discrimination as to discharge. Recommend adjustment in salary and attorney`s fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDAURA ELLIS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3498

)

VILLAGE METHODIST DAY SCHOOL, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconf erence on July 11, 2003, with connecting sites

in Fort Lauderdale and Tallahassee, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stewart Lee Karlin, Esquire

Stewart Lee Karlin, P.A.

The Advocate Building, Second Floor

315 Southeast Seventh Street

Fort Lauderdale, Florida 33301

For Respondent: Mark A. Hanley, Esquire

Glenn, R asmussen, Fogarty & Hooker, P.A.

100 South Ashley Drive

Suite 1300

Tampa, Florida 33601 - 3333

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the basis of national origin

in violation of the Florida Civil Rights Act of 1992, as

amended.

PRELIMINARY STATEMENT

Lindaura Ellis filed a Charge of Discrimination with the

Florida Commission on Human Relations (FCHR) against Village

Methodist Day School (Day School) alleging that the Day School

discriminated against her on the basis of her national origin

(Hispanic). On August 7, 2002, the FCHR issued a determination

of no cause and a notice of determination of no cause. On

September 3, 2002, Ms. Ellis filed a Petition for Relief from an

unlawful employment practice with the FCHR against the Day

School. On September 10, 2002, the FCHR referred this matter to

the Division of Administrative Hearings.

The hearing was originally scheduled for December 13, 2 002.

At the time the hearing was set, neither party was represented

by counsel. Subsequent to setting the hearing, the Day School

obtained counsel. Certain difficulties developed with

Ms. Ellis, and the hearing was continued. After the

continuance, Ms. Ellis was represented by a qualified

representative, Shalom David Ebbo.

The hearing was re - scheduled for May 1, 2003. Prior to the

scheduled hearing, Ms. Ellis obtained counsel, who requested a

continuance of the hearing, which was granted.

At hearing, Ms. Ellis testified in her own behalf,

presented the testimony of one witness, and entered 25 exhibits

(Petitioner's Exhibits numbered 1 - 13, 15 - 22, 24, 26, 27, and 32)

into evidence. 1 The Day School presented the testimony of one

witness and entered 12 ex hibits (Respondent's Exhibits numbered

1 - 11, and 13), which included deposition testimony, into

evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissions was

set for more than ten days f ollowing the filing of the

transcript. The Transcript, consisting of one volume, was filed

on August 5, 2003. An extension of time was granted for the

filing of the post - hearing submissions. The parties timely

filed post - hearing submissions, which were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Ellis was born in Peru. She is Hispanic. No

dispute exists that she is a member of the protected class as it

relates to discrimination.

2. No dispute exists that, at all times material hereto,

the Day School was an employer as defined by the Florida Civil

Rights Act of 1992, as amended.

3. No dispute exists that Ms. Ellis has day care and pre -

school experience. She was a teacher in pre - school and day care

in Peru and in the United States after moving to the United

States with her husband in 1988. Ms. Ellis was also a previous

owner of a day care in the United States.

4. In 1998, Ms. Ellis moved to Florida with her husband.

She found employment as a day care teacher. I n working as a day

care teacher, Ms. Ellis also assisted with cleaning the room in

which the children were located.

5. On January 10, 2000, Ms. Ellis requested a teacher's

assistant or teacher's aide position at the Day School. She did

not know of any op enings at the Day School. The Day School had

not advertised any vacant positions. Ms. Ellis met with

Ms. Louise Brand, the director of the Day School. 2

6. The Day School was associated with a church and had a

diverse student population. The student pop ulation included

children from different Hispanic countries, Haiti, and the

Bahamas. The diverse student population also included children

from different socio - economic backgrounds. Additionally, the

teachers and teacher's aides, as well, were diverse. 3

7. At the meeting on January 10, 2000, Ms. Brand inquired

as to Ms. Ellis' birthplace, and Ms. Ellis informed her that it

was Peru. Ms. Ellis presented to Ms. Brand several

certificates, which indicated, among other things, that

Ms. Ellis had completed courses and training regarding the care

of children. Ms. Ellis also presented documents showing that

she had experience in day care centers assisting teachers.

Ms. Brand requested a high school diploma from Ms. Ellis. The

Day School requires a high scho ol diploma to be hired as a

teacher's aide or teacher's assistant, but Ms. Ellis was not

informed by Ms. Brand that the Day School was requiring a

diploma for the position of a teacher's aide or teacher's

assistant. Ms. Ellis had a high school diploma fro m Peru but

did not provide proof of having it to Ms. Brand because

Ms. Ellis did not have the diploma with her, since none of the

other day care centers at which she worked had requested the

diploma.

8. A teacher's assistant, teacher's aide, and assista nt

teacher are one in the same. These terms and positions were

used interchangeably in testimony. Teacher's assistant and

teacher's aide are used interchangeably in this Recommended

Order.

9. Ms. Brand was aware that Ms. Ellis was Hispanic.

10. At hea ring, it was evident that Ms. Ellis speaks with

an accent which is Hispanic. Additionally, an interpreter was

used when Ms. Ellis testified to make it easier for her

(Ms. Ellis) to respond to the questions asked.

11. Ms. Ellis speaks basic English.

12. The Day School requires a teacher's aide to be able to

"speak, read and write English." Ms. Brand did not inform

Ms. Ellis that speaking English was a requirement to be a

teacher's aide at the Day School. Ms. Ellis was not aware that

speaking English was a requirement.

13. Ms. Brand instructed Ms. Ellis to return the next day

for work. When Ms. Ellis left the Day School, she was expecting

to be hired as a teacher's assistant.

14. Ms. Ellis returned to the Day School the next day,

dressed to teach, and brought a completed employment application

with her. To Ms. Ellis' surprise and dismay, Ms. Brand informed

her that no position for a teacher's assistant was available;

that only a cleaning position was available; and that Ms. Ellis

could take the positio n of a cleaning/housekeeping person until

a teacher's assistant position became available. Ms. Ellis

agreed to take the cleaning/housekeeping position. 4 Ms. Brand

was Ms. Ellis' supervisor.

15. The Day School requires a housekeeping person to be

able to "speak, read and write English."

16. As the cleaning/housekeeping person at the Day School,

Ms. Ellis had several responsibilities. Her responsibilities

included mopping; vacuuming; cleaning out refrigerators;

cleaning curtains; assisting the cook; clea ning the area where

the children ate; taking out the garbage, which weighed

approximately 60 to 70 pounds; moving and placing donated canned

goods; and taking out bags of mulch. Ms. Ellis' duties spanned

two buildings.

17. Ms. Ellis complained to no avai l to Ms. Brand

regarding all of the duties given her. Ms. Ellis considered the

work to be too much and some of the work to be too heavy.

18. In February 2000, while at work, Ms. Ellis slipped on

the floor at the Day School and ammonia was spilled over he r

body. She was on her way to complain to Ms. Brand about the

inordinate amount of work that she was doing. Ms. Ellis had

headaches for two weeks after the accident. No evidence was

presented that Ms. Ellis reported the accident to Ms. Brand.

19. After slipping on the floor, Ms. Ellis inquired of

Ms. Brand as to when she was going to be hired as a teacher's

assistant. Ms. Brand ignored her question and told her to

return to work.

20. In February 2000, Ms. Ellis attempted to give

Ms. Brand a copy of he r diploma. Ms. Brand informed her that

she (Ms. Brand) did not need a copy.

21. Subsequent to the inquiry about a teacher's assistant

position, Ms. Ellis observed individuals, who were white and who

had not completed high school, being hired as, believed by

Ms. Ellis, teacher's assistants. Ms. Ellis questioned Ms. Brand

regarding hiring her as a teacher's assistant. Ms. Brand

ignored her and told Ms. Ellis to return to work.

22. No dispute exists that, in the summer of 2000, high

school students, who were non - Hispanic, were hired as part - time

teacher's aides. Also, some worked more hours than part - time.

23. Ms. Ellis continued to inquire of Ms. Brand about

being hired as a teacher's assistant. Ms. Brand told Ms. Ellis

that "Spanish are only good for cleaning" and to return to work.

Ms. Ellis continued to work as the cleaning/housekeeping person.

24. On Friday, August 4, 2000, around noon, Ms. Ellis

injured her back while attempting to throw garbage into the

dumpster. She had taken garbage, weighin g approximately 60 or

70 pounds, to the dumpster. Ms. Ellis attempted several times

to lift and throw the garbage into the dumpster but could not.

On her last attempt, she heard something click in her back and

remained at the dumpster, without trying to move. After an

elapse of some time, Ms. Ellis went to Ms. Brand's office,

holding her lower back, and explained to Ms. Brand what

happened. Ms. Brand told Ms. Ellis to return to work.

Ms. Ellis then requested to go to the hospital, but Ms. Brand

denied the request, informing Ms. Ellis that she could go

wherever she wanted after 5:30 p.m., which was the end of

Ms. Ellis' workday. Ms. Ellis remained on the job until

5:30 p.m.

25. After 5:30 p.m., Ms. Ellis saw a physician, Seth H.

Portnoy, D.O., who det ermined that she had injured her back, a

lumbar strain. Dr. Portnoy wrote a prescription of

restrictions, which indicated that Ms. Ellis should not perform

any bending, lifting, pushing, or pulling for 10 to 14 days and

that she needed rest.

26. On the f ollowing Monday, August 7, 2000, Ms. Ellis

gave the prescription to Ms. Brand, who threw it on the floor

and told Ms. Ellis to go to work. Ms. Ellis went to work even

though she was in pain and taking prescribed medication for

pain.

27. For the next two weeks, Ms. Ellis continued to come to

work although she performed very light and little, if any, work.

During the entire time, she was in pain and taking prescribed

medication for her back. Ms. Ellis continued to request time

off for her injury from Ms. Brand, but Ms. Brand refused to pay

Ms. Ellis while she was off, thereby not working, so Ms. Ellis

continued to come to work.

28. On August 17, 2000, while at the Day School, Ms. Ellis

was having severe pain and sat down, not proceeding to a

building to w hich Ms. Brand had directed her to go. When

Ms. Ellis failed to report to the building, Ms. Brand directed

someone to send Ms. Ellis to her (Ms. Brand's) office.

29. Before getting to Ms. Brand's office, Ms. Ellis and

Ms. Brand met one another at the ki tchen. Ms. Brand had a list

of duties that Ms. Ellis was expected to perform in order to

continue to work at the Day School, including taking out

garbage. Also, at that time, Ms. Brand wanted Ms. Ellis to take

out a heavy bag of garbage; however, Ms. Ell is refused to take

out the garbage.

30. Ms. Brand told Ms. Ellis to follow her to her

(Ms. Brand's) office. At the office, Ms. Ellis and Ms. Brand

got into a shouting match. Ms. Brand made abusive remarks to

Ms. Ellis and poked Ms. Ellis with her finger . Ms. Ellis tried

to leave Ms. Brand's office, but Ms. Brand prevented her from

leaving. A small and short scuffle ensued, with Ms. Brand

grabbing Ms. Ellis' shirt, tearing it, and Ms. Ellis suffered a

bruise on her buttocks from falling on Ms. Brand's d esk.

Ms. Ellis was shortly thereafter able to leave Ms. Brand's

office, and left shouting "She [Ms. Brand] fired me. She fired

me!"

31. When Ms. Ellis left Ms. Brand's office, she

(Ms. Ellis) believed that Ms. Brand had fired her. Ms. Ellis

did not ret urn to the Day School to work.

32. No dispute exists that between January 2000 and

December 2000, the Day School employed full - time and part - time

teachers and teacher's aides, some of whom were Hispanics.

33. One such Hispanic teacher's aide was Maria Gu errero

who is from the country of Colombia. Ms. Guerrero was hired by

Ms. Brand at the Day School around February or March 2000, to

work in the afternoons as a teacher's aide and anywhere she was

needed. Ms. Guerrero has a high school diploma.

34. Not o nly was Ms. Guerrero a teacher's aide, but she

also had the duties of helping in the kitchen, sweeping floors,

taking children on the outside and not remaining inside at any

time, and taking out the garbage. As to the garbage,

Ms. Guerrero dragged the gar bage bags because they were too

heavy to lift. At times, some of the non - Hispanic teachers and

teacher's aides assisted in doing these same additional duties

to "help out," but none were required to do so as often as

Ms. Guerrero. Ms. Guerrero considered such treatment of

Hispanics by Ms. Brand to be different than the treatment of

non - Hispanics by Ms. Brand. Ms. Guerrero resigned from her

position in June 2000 because she could no longer handle the

many duties imposed upon her by Ms. Brand; because she felt that

she was being treated unfairly by Ms. Brand; and because

constantly being in the outside heat was too much for her.

35. In addition to being a teacher's aide, Ms. Guerrero

was a "floater." The duties of a floater are generally the same

as were Ms. Guerrero's additional duties, i.e., filling in where

needed.

36. Ms. Guerrero was present when Ms. Brand made the

remark to Ms. Ellis regarding Spanish people. Ms. Guerrero

heard Ms. Brand state that "Spanish is good for cleaning." The

undersigned finds no difference in this statement and the

statement indicated by Ms. Ellis, i.e., "Spanish are only good

for cleaning." Ms. Guerrero's testimony is found to be

credible.

37. At the time Ms. Ellis was in Ms. Brand's office on

August 17, 2000, Dorothy Scowronski's, who is the present

director of the Day School, worked in the administrative office

and was referred to as the "front desk" person.

Ms. Scowronski's desk was approximately five feet from

Ms. Brand's office. Only a wall and a door separated

M s. Scowronski from Ms. Brand's office. Ms. Brand had two doors

in her office which were usually open but were closed at this

time. Although Ms. Scowronski was unable to hear what was being

said between Ms. Ellis and Ms. Brand, she knew that the two of

th em were shouting.

38. Ms. Scowronski agrees that Ms. Ellis left Ms. Brand's

office shouting that she was fired but also recalls Ms. Brand

walking behind Ms. Ellis and telling Ms. Ellis that she was not

fired. The undersigned does not find the testimony c redible

that Ms. Brand told Ms. Ellis that she was not fired.

39. Ms. Brand terminated Ms. Ellis from employment with

the Day School.

40. No evidence was presented that Ms. Brand sent or

Ms. Ellis received written communication that Ms. Ellis was

termina ted from employment.

41. Since August 17, 2000, when she was terminated,

Ms. Ellis has not worked and has not been able to work, which

includes seeking employment, because of her back injury. She

has herniated discs, is totally disabled, 5 and is in const ant

pain. She cannot sleep. She has no insurance. Ms. Ellis has a

pending workers' compensation claim based on the injury to her

back at the Day School.

42. Ms. Ellis pays $80.00 a month for prescribed

medication for depression. No evidence was presen ted as to a

psychological or psychiatric report regarding her depression.

The evidence is insufficient to draw an inference that the

depression is a result of her experience at and termination from

the Day School.

43. Ms. Ellis' position as the cleaning/ housekeeping

person paid $7.25 per hour. She worked eight hours a day, five

days a week.

44. The evidence does not show that an allegation of

hostile work environment was set forth in Ms. Ellis' complaint

of discrimination or Petition for Relief. Furthe r, the evidence

does not show that the FCHR investigated an allegation of

hostile work environment.

45. Ms. Ellis was represented by counsel in this matter.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11, 120.569, and

120.57(1), Florida Statutes (2003).

47. Section 760.10, Florida Statutes (2000), provides in

pertinent part:

(1) It is an unlawful employment practice

for an em ployer:

(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 privileges of employment, because of such

individual's race, color, religion, se x,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

indivi dual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

48. Ms. Ellis' charge of discrimination is not limited to

her termination but also includes disparate treatment as to her

not being hired as a teacher's aide at the Day School.

49. The instant case does not involve a case of direct

evidence of discrimination. A three - step burden and order of

presentation of proof have been established for such unlawful

employment pract ices. McDonnell Douglas Corporation v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973); Aramburu

v. The Boeing Company , 112 F.3d 1398, 1403 (10th Cir. 1999).

The initial burden is upon Ms. Ellis to establish a prima facie

case of discriminat ion. McDonnell Douglas , at 802; Aramburu , at

1403. Once she establishes a prima facie case, a presumption of

unlawful discrimination is created. McDonnell Douglas , at 802;

Aramburu , at 1403. The burden shifts then to the Day School to

articulate some l egitimate, nondiscriminatory reason for its

action. McDonnell Douglas , at 802; Aramburu , at 1403. If the

Day School carries this burden, Ms. Ellis must then prove by a

preponderance of the evidence that the reason offered by the Day

School is not its tru e reason, but only a pretext for

discrimination. McDonnell Douglas , at 804; Aramburu , at 1403.

50. However, at all times, the ultimate burden of

persuasion that the Day School intentionally discriminated

against Ms. Ellis remains with her.

Texas Departm ent of Community Affairs v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

51. Ms. Ellis establishes a prima facie case of

discrimination by showing: (1) that she belongs to a protected

group; (2) that she was subjected to an adverse em ployment

action; (3) that her employer treated similarly situated

employees outside the protected group differently or more

favorably; and (4) that she was qualified to do the job.

McDonnell Douglas , supra ; Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir . 1997); Aramburu , supra .

52. Applying the prima facie standards, no dispute exists

that Ms. Ellis satisfies the first element.

53. Ms. Ellis satisfies the second element in that the

evidence shows that Ms. Ellis was not hired in the position as a

teache r's aide and was terminated from her position as a

cleaning/housekeeping person.

54. As to the third element, Ms. Ellis must show that she

and the other employees (the comparator employees) are

"similarly situated in all relevant respects." Holifield ,

su pra , at 1562. In making such a determination, consideration

must be given to "whether the employees are involved in or

accused of the same or similar conduct and are disciplined in

different ways." Ibid.

55. The comparator employees "must be similarly situated

in all material respects, not in all respects." McGuinness v.

Lincoln Hall , 263 F.3d 49,53 (2d Cir. 2001); Shumway v. United

Parcel Service, Inc. , 118 F.3d 60, 64 (2d Cir. 1997). "In other

words, . . . those employees must have a situation suffi ciently

similar to plaintiff's to support at least a minimal inference

that the difference of treatment may be attributable to

discrimination." McGuinness , supra , at 54. Similarly situated

"only requires similar misconduct from the similarly situated

com parator." Anderson v. WBMG - 42 , 253 F.3d 561, 565 (11th Cir.

2001).

56. Ms. Ellis satisfied the third element as to the

teacher's aide position. She established that applicants who

were non - Hispanic and who did not have a high school diploma

were hired a s teacher's aides.

57. However, Ms. Ellis failed to satisfy the third element

as to her termination. The evidence was insufficient to

establish that other similarly situated employees outside of her

protected group were treated differently or more favora bly by

Ms. Brand. Consequently, Ms. Ellis failed to satisfy the prima

facie requirement for her termination.

58. Ms. Ellis satisfied the fourth element, as to the

teacher's aide position, by establishing that she was qualified

for the position. Applican ts who did not have a high school

diploma were hired in the position. Ms. Brand did not have a

high school diploma from Ms. Ellis, although it was made

available by Ms. Ellis.

59. The requirement of speaking English for the teacher's

aide position must a lso be addressed. This same requirement

applied to the cleaning/housekeeping position. The Day School

asserts that Ms. Ellis qualified for the cleaning/housekeeping

position but failed to qualify for the teacher's aide position

based on this same require ment. The Day School's assertion is

not persuasive.

60. Once Ms. Ellis establishes a prima facie case, a

presumption of unlawful discrimination is created.

61. Regarding the second - step burden of proof, the Day

School failed to demonstrate a legitimate, nondiscriminatory

reason for its employment action. As to not hiring Ms. Ellis as

a teacher's aide, none of the high school students hired as

teacher's aides had a high school diploma.

62. Further, regarding the second - step burden of proof,

the Day Scho ol further argues that Ms. Brand was under no

obligation to hire Ms. Ellis because Ms. Ellis' developed a poor

attitude after her injury on August 4, 2000, due to Ms. Ellis

complaining about her work. The poor attitude that the Day

School points out occur red in August 2000, but the evidence

establishes that high school students were hired as teacher's

aides before August 2000. The Day School's argument is not

persuasive.

63. As to Ms. Ellis' termination, as indicated previously,

she failed to satisfy th e prima facie case requirement.

Assuming that she had satisfied the prima facie requirement, the

Day School showed that Ms. Ellis had not followed a directive by

her supervisor, Ms. Brand, to continue with her work, which was

light duty. As a result, Ms. Ellis had not complied with a

direct order from her supervisor, which was a legitimate reason

for terminating her.

64. Ms. Ellis must now demonstrate by a preponderance of

the evidence that the reason offered by the Day School for not

hiring her as a tea cher's aide is not its true reason, but only

a pretext for discrimination. McDonnell Douglas , at 804;

Aramburu , at 1403.

65. Ms. Ellis met her burden. The Day School asserts that

it did not hire Ms. Ellis as a teacher's aide because she did

not have a h igh school diploma and could not speak English. The

evidence shows that Ms. Ellis attempted to provide Ms. Brand

with her diploma, but Ms. Brand told her that the diploma was

not needed. The evidence further shows that non - Hispanic high

school students w ere hired as teacher's aides and, without

question, they did not have a high school diploma. Furthermore,

the evidence shows that being able to speak English was a

requirement to be a teacher's aide and a cleaning/housekeeping

person; however, Ms. Ellis w as denied being a teacher's aide.

If she met the requirement for one position, she should have met

the same requirement for the other position. Moreover, the

comment by Ms. Brand that "Spanish are only good for cleaning"

supports the conclusion that the reason offered by the Day

School for not hiring Ms. Ellis as a teacher's aide was a

pretext for discrimination.

66. Consequently, the Day School discriminated against

Ms. Ellis on the basis of her national origin.

67. Section 760.11(6), Florida Statutes (2000), provides

in pertinent part:

. . . If the administrative law judge, after

the hearing, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordan ce with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay.

68. As an affirmative relief, Ms. Ellis should receive the

rate of pay of a teacher's aide for the established time period

that the Day School had non - Hispanic students working as

teacher's aides. As a result, Ms. Ellis' salary, when she was

the cleaning/housekeeping person, should be adjusted as such,

commencing at the time that the non - Hispanic teacher's aides

were hired u ntil the time that her injury prevented her from

working, which was August 17, 2000. At hearing, no evidence was

presented to establish the rate of pay for a teacher's aide with

Ms. Ellis' experience; therefore, such evidence would have to be

presented at a subsequent hearing if the FCHR adopts this

Recommended Order.

69. Since Ms. Ellis was unable to work and did not seek

further employment because of her back injury and since she has

a pending workers' compensation claim, back pay would not be

appropria te. Further, Ms. Ellis has not presented any argument

or case law indicating that she should receive back pay.

70. Because Ms. Ellis obtained the services of an attorney

to represent her in this matter, attorney's fees should be

awarded. Evidence, regar ding attorney's fees, would have to be

presented at a subsequent hearing if the FCHR adopts this

Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relati ons

enter a final order:

1. Finding that the Village Methodist Day School (Day

School) discriminated against Lindaura Ellis on the basis of her

national origin and ordering the Day School to cease such

discrimination.

2. Ordering compensation to Ms. Elli s reflected in an

adjustment in her rate of pay consistent with this Recommended

Order.

3. Ordering the payment of attorney's fees.

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

Tallahassee, Leon County, Florida.

S

___________________________________

ERROL H. POWELL

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 1st day of December, 2003.

ENDNOTES

1/ Because the hearing was by video teleconference, the parties

forwarded their exhibits to this Administrative Law Judge.

Ms. Ellis' counsel failed to timely forward her exhibits and had

to be reminded to do so. On November 20, 2003, Ms. Ellis'

counsel forwarded her exhibits by next day service. The

tracking information for the courier company indicates that the

exhibits were received by the Division of Administrative

Hearings (DOAH) on November 21, 2003; however, the Clerk's

office of DOAH does not show that the exhibits were f iled and

cannot locate the exhibits. As a result, Ms. Ellis' counsel was

requested to forward a copy of the exhibits to DOAH, which was

received and filed on December 1, 2003. All of the exhibits,

except for Petitioner's Exhibit 27, which was the shirt w orn by

Ms. Ellis on August 17, 2000, were received. Petitioner's

Exhibit 27 is not a material piece of evidence which affects the

outcome of the instant matter. The outcome of the instant

matter would be the same even if Petitioner's Exhibit 27 did not

e xist. Consequently, not having Petitioner's Exhibit 27 does

not affect the determination of the instant matter.

2/ The Day School presented the testimony of Ms. Brand by video

deposition and through a transcript of the deposition. At the

time of the vi deo deposition, Ms. Ellis was represented by the

qualified representative.

3/ The same situation existed at the time of hearing.

4/ Ms. Ellis introduced into evidence a statement indicating that

the cleaning/housekeeping position was a temporary positi on.

5/ After the hearing, Ms. Ellis' former qualified representative

filed a document regarding her disability. The document is not

considered in this Recommended Order.

COPIES FURNISHED:

Stewart Lee Karlin, Esquire

Stewart Lee Karlin, P.A.

The Advoca te Building, Second Floor

315 Southeast Seventh Street

Fort Lauderdale, Florida 33301

Mark A. Hanley, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

100 South Ashley Drive

Suite 1300

Tampa, Florida 33601 - 3333

Denise Crawford, Agency Clerk

Florida Com mission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.