02-004175 Sylvester R. Brown vs. Florida State University Status: Closed Recommended Order on Tuesday, July 15, 2003.

Summary: Petitioner failed to prove a prima facie case of age, race, or disability discrimination. Respondent also established a legitimate, non-discriminatory reason for termination (i.e., absence without authorization and excessive tardiness).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVESTER R. BROWN, )

)

Petitioner, )

)

vs. )

) Case No. 02 - 4175

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, this cause came on for administrative

hearing before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Tallahassee, Florida, on April 29, 2003. The appearances were

as follows:

APPEARANCES

For Petitioner: Sylvester R. Brown, pro se

124 Bermuda Road

Tallahassee, Florida 32312

For Respondent: Joseph B. Donnelly, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner, Sylvester Brown, was subjec t to

discrimination in employment for the reasons alleged in the

Petition.

PRELIMINARY STATEMENT

The Petitioner, Sylvester Brown, filed a complaint with the

Florida Commission on Human Relations (Commission) alleging that

his termination by Florida Stat e University was motivated by age

discrimination, race discrimination, disability discrimination

and retaliation. The Commission's Office of Employment

Investigation conducted an investigation into the Petitioner's

allegations and found no reasonable basi s to conclude Petitioner

had been subject to discrimination. The Commission filed a

Notice of Determination of No Reasonable Cause on September 10,

2002, based on the findings of the investigation and pursuant to

Section 760.11(3), Florida Statutes, and 6 0Y - 5.004, Florida

Administrative Code. Upon the Petitioner's timely request for a

hearing, pursuant to Sections 120.569, 120.57(1) and 760.11(7),

Florida Statutes, this case was referred to the Division of

Administrative Hearings and assigned to the under signed.

The cause came on for hearing as noticed. At hearing, the

Petitioner testified in the narrative and put on one witness,

his sister. The Petitioner, upon the Respondent's stipulation,

introduced into evidence two exhibits. The Respondent present ed

two witnesses and introduced 17 exhibits into evidence. The

Proposed Recommended Orders submitted have been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Sylvester Brown, was terminated from

his position a s Laborer, position number 51343, within the

Facilities Operation and Maintenance Department of Florida State

University (FSU) on October 7, 1999, for violation of a Last

Chance Agreement and absence without authorized leave. The

Petitioner had been emplo yed by FSU for 24 years.

Petitioner's Disciplinary Violations Leading to Termination

2. Attendance is a critical element of the Laborer's job

because departmental productivity depends on the reliable

availability of employees. The Petitioner received a copy of

Rule 6C2 - 4.070, Guidelines for Disciplinary Action, Rules of the

Florida State University Administrative Code on January 29,

1988, which provided notice to the Petitioner of FSU's standard

of conduct and the associated penalties for violation.

3. The Petitioner was cited for numerous disciplinary

infractions prior to his dismissal. The Petitioner's work

history documents a consistent trend of absences which grew

progressively worse over time. A list of documentation in

evidence, exhibiting disci plinary action taken by FSU against

the Petitioner includes:

a. A three day suspension for Absence Without Authorized

Leave (AWOL) and Excessive Absences, dated January 3, 1997.

b. A written reprimand for Excessive Absences and AWOL,

dated August 6 , 1996.

c. An oral reprimand for excessive absences, dated

April 26, 1996.

d. A written reprimand for AWOL, dated February 29,

1996.

e. A written reprimand for AWOL, dated August 14, 1991.

f. A written reprimand for excessive tardiness, d ated

June 5, 1989.

g. A written reprimand for excessive tardiness, dated

February 22, 1989.

h. A written reprimand for excessive tardiness, dated

July 8, 1988.

i. A written reprimand for AWOL, dated May 25, 1988.

j. The Petitioner was cited for excessive tardiness in

an official written reprimand dated July 8, 1988, and the

Petitioner was again reminded that his performance hindered the

department's ability to perform its function.

k. An oral reprimand for excessive tardiness, dated

Janu ary 28, 1988.

l. An oral reprimand for misuse of state property and

equipment, dated July 11, 1985.

m. A written reprimand for misuse of state property and

equipment dated March 21, 1984.

n. A written reprimand for excessive absences, dated

Feb ruary 7, 1984.

o. A written reprimand for AWOL and misuse of state

property and equipment dated, January 25, 1983.

p. A three day suspension for AWOL, dated July 27, 1981.

q. A written reprimand for AWOL, dated July 13, 1981.

4. The Petitione r was directed in an August 14, 1991,

written reprimand to phone his supervisor as close to 8:00 a.m.

as possible on days he would be unable to report to work.

5. The Petitioner was reminded in the February 29, 1996,

written reprimand of the policy requi ring employees to provide

supervisors with advanced notice or documentation for leave to

be authorized.

6. The Petitioner was informed on April 26, 1996, that his

absences, both excused and unexcused, exceeded established

attendance and leave standards. Specifically, from January

through April, the Petitioner used 33 hours of annual leave, 31

hours of sick leave, and 29 hours of leave without pay.

7. FSU notified the Petitioner that his absences and sick

leave totaling 33 hours during the period from A pril 26, 1996 to

August 6, 1996, were deemed excessive and in contravention of

departmental standards. The Petitioner was also cited for six

hours of being absent without authorized leave.

8. The Petitioner's chronic absenteeism did not improve.

The p eriod from August 6, 1996 through January 3, 1997,

witnessed 46 hours of sick leave or unauthorized leave on the

Petitioner's part.

9. An inventory of the Petitioner's absences following his

suspension from January 7 - 9, 1997 until August 22, 1997,

catalo gued 56 hours of sick leave, 16 hours of leave without pay

and two hours of absence without authorized leave. This amount

of leave was "considered to be excessive and completely

unacceptable." [Id.] Further, the university did not receive

any medical exc uses for the Petitioner's use of sick leave

during this period. [Id.]

10. Counseling was provided to the Petitioner by FSU

regarding the use of sick leave on August 17, 1998. An

examination of the Petitioner's attendance revealed that he used

63 hours o f sick leave from February 20, 1998 through

August 6, 1998. [Id.] The university's standard for the same

period of time was 33 hours of sick leave. [Id.]

11. The Petitioner was further advised by FSU that he

would not be compensated for three cons ecutive absences or three

absences within a 30 - day period without proper medical

documentation.

12. FSU assessed the Petitioner's attendance from

January 8, 1998 through August 6, 1998, by comparing the

standard allocated for sick leave to the Petition er's actual use

of sick leave. The sick leave standard for employees for the

period under review was 44.16 hours whereas the Petitioner

expended 67 hours of sick leave. [Id.]

13. The record establishes that the Petitioner was warned

17 times in writing through reprimands, memorandums, and

counseling notices dating back to 1981 that absenteeism was

punishable under university employee disciplinary standards.

14. Tardiness and absenteeism are, in fact, grounds for

dismissal under the FSU Handbook for Emp loyees. The Petitioner

was warned twice in writing that failure to rectify his

recurring absenteeism could result in his dismissal.

Petitioner's Termination

15. The FSU's Guidelines for Disciplinary Action are based

on the concepts of progressive and cu mulative discipline. The

Disciplinary Guidelines outline standards to apply for

punishable offenses to ensure similar treatment.

16. Ms. Susannah Miller, Manager of Employees Relations at

FSU, testified that the Petitioner's personnel file revealed the

worst case of absenteeism she has seen at FSU. Excessive

absences is defined in the Guideline for Disciplinary Action as

"an attendance record of recurring absences, even though all or

a majority of the absences were necessary and excused."

Dismissal is allowed as proper punishment for an employee's

fourth violation of the excessive absence rule. FSU notified

the Petitioner of its intention to terminate him for excessive

absences, effective on or shortly after October 12, 1998.

17. In lieu of firing th e Petitioner, FSU elected to allow

the Petitioner to enter into a "Last Chance Agreement" (LCA)

with FSU to avoid dismissal. Ms. Miller stated that Last Chance

Agreements allow a final opportunity for employees to improve

their performance. Ms. Miller fu rther testified that to her

knowledge FSU has never retained any employee that violated a

Last Chance Agreement.

18. The Last Chance Agreement required the Petitioner to

(1) obtain prior written approval of requests for annual leave

or leave without pay; (2) follow departmental policy and call - in

between 8:00 and 8:30 a.m. and speak personally with his

supervisor or proper designee if he was sick and unable to

report to work; and (3) agree that violation of any LCA

provision would result in immediate term ination for cause.

19. The Petitioner violated the Last Chance Agreement when

he did not report for work on August 27, 1999, because he

neither obtained prior approval for the absence nor followed the

call - in procedure. The Petitioner also failed to pro vide any

documentation justifying his absence.

20. The Petitioner was in violation of the Last Chance

Agreement on August 31, 1999, when he was tardy without

permission and failed to follow the call - in procedure. The

Petitioner's breach of the Last Chan ce Agreement is even more

egregious because he collected his paycheck prior to work and

could have easily informed his supervisor or the designee that

he needed leave that day.

21. In addition to violating the terms of the Last Chance

Agreement, the Peti tioner was also AWOL on August 27 and

August 31, 1999. AWOL is "failure to obtain approval prior to

any absence from work" and is punishable by dismissal for the

third occurrence. The Petitioner admitted that he violated the

Last Chance Agreement.

22 . On September 15, 1999, FSU informed the Petitioner of

its decision to terminate him for violating the Last Chance

Agreement and absence without authorized leave. The Petitioner

was dismissed on October 7, 1999. Petitioner's Step One

Grievance was deni ed on December 13, 1999.

23. FSU's decision to terminate the Petitioner for

violation of the Last Chance Agreement and absence without

authorized leave was upheld by the State University System of

Florida in its Step Two Grievance decision.

Petitioner's Injury

24. The Petitioner's Position Description reveals that

lifting is an integral part of a laborer's duties.

25. The Petitioner's 1995 Position Description allocates

85 percent of the job's essential function to lifting, moving

and arranging univers ity property and requires that the laborer

be able to lift 30 pounds.

26. The Petitioner sustained a back injury at work on

September 4, 1997. The Petitioner's job duties changed as a

result of the injury and he was tasked with inspecting fire

extinguis hers from September 10 through November 12, 1997. A

physical capacity assessment performed on the Petitioner

indicated that he was capable of performing at a medium demand

level. The Department of Labor defined medium demand as capable

of lifting 50 poun ds and pushing and pulling 50 pounds.

27. The Petitioner was temporarily re - assigned to the

Grounds Section of the Facilities, Operations and Maintenance

Department on December 23, 1997. The Petitioner testified that

his job function involved re - cycling .

28. The Petitioner's assignment in the Grounds Section was

light duty and he was informed that his job duties could be

modified after his physician reviewed the physical capacity

assessment. Dr. Alexander, the Petitioner's physician, declared

the Peti tioner fit for medium demand duty with a 35 - pound

lifting limit on March 24, 1998.

29. Robert Pullen, American Disabilities Act Coordinator

at FSU, was directed by Carolyn Shackleford, under the

University's Reasonable Accommodation Policy, to ensure tha t the

Petitioner's job activities with the Grounds Section did not

exceed the 35p - pound lifting threshold. The Petitioner never

contacted Mr. Pullen's office regarding reasonable

accommodation.

30. Mr. Pullen determined that the Petitioner's duties did

not violate the lifting restriction and were in full compliance

with the accommodation policy. The Petitioner testified that he

could lift 35 pounds repetitively.

31. The record reflects no evidence of age discrimination

committed by the Respondent agai nst the Petitioner. The record

indicates no evidence that the Petitioner was terminated due to

his race. The Petitioner presented no evidence or testimony

regarding retaliation by FSU.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.57(1) and 120.569, Florida Statutes.

33. The Florida Civil Rights Act of 1992, Chapter 760,

Florida Statutes, guards against discrimination in the

workplace. The Act , among other things, forbids the

discriminatory firing of an employee.

34. Specifically, Section 760.10(1)(a), Florida Statutes,

states that it is an "unlawful employment practice for an

employer to discharge any person because of such person's race,

co lor, religion, sex, national orgin, age, handicap, or marital

status." In addition, Section 760.10(7) forbids an employer to

retaliate against an employee. FSU, the Respondent, is an

"employer" as defined in Section 760.02(7).

35. Florida courts have d etermined that federal case law

applies to claims arising under Florida's Civil Rights Act and,

as such, the United States Supreme Court's model for employment

discrimination cases set forth in McDonnell Douglas Corporation

v. Green , 411 U.S. 792. 93 S. Ct . 1817, 36 L.Ed. 2d 668 (1973)

applies to claims arising under Section 760.10, Florida

Statutes. Florida Department of Community Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991), The Florida State

University v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1 997), Razner

v. Wellington Regional Medical Center, Inc. , 837 So. 2d 437 (4th

DCA 2003), Chanda v. Engelhard/ICC , 234 F.3d 1219, 1221 (llth

Cir. 2000)

36. The McDonnell shifting burden analysis is as follows:

(1) the Petitioner must prove a prima facie c ase of

discrimination by the preponderance of the evidence; (2) if the

Petitioner proves a prima facie case, the burden shifts to the

defendant who must "articulate some legitimate,

nondiscriminatory reason for the employee's rejection" to rebut

the Petiti oner's presumption of a prima facie case, McDonnell ,

411 U.S. at 803, 93 S. Ct. at 1824.

37. The Petitioner retains the ultimate burden of

persuasion in an employment discrimination case. Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 1 01 S.

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

38. The Petitioner presented neither direct evidence of

discriminatory intent nor statistical evidence demonstrating a

pattern of such intent. Thus, only circumstantial evidence, if

any, can be applied to analyze the Petitioner's claim under the

McDonnell framework. Early v. Champion Int'l Corp. , 907 F.2d

1077, 1081 (11th Cir. 1990).

Disability Claim

39. The Petitioner failed to prove his claim of disability

discrimination under Chapter 760, Florida Statutes. I n order to

prove a prima facie case of disability discrimination under

Chapter 760, Florida Statutes, or 42 U.S.C. 21101 et seq, The

Americans With Disabilities Act, the Petitioner must demonstrate

that he (1) has a disability; (2) is qualified to perform the

essential functions of the position either with or without

reasonable accommodation; (3) identified a reasonable

accommodation to his employer; and (4) was unlawfully

discriminated against because of his disability. Schwertfager

v. City of Boynton Be ach , 42 F.Supp. 2d 1347, 1357 (S.D.Fla.

1999).

40. The Petitioner's medical history and the care FSU took

to address the Petitioner's limitation demonstrates the

Petitioner has a disability within the meaning of the ADA. 42

U.S.C. Section 12102(A)(C).

41. However, the Petitioner is not qualified to perform an

essential function of the laborer position, namely attendance.

Attendance has been held to be an essential part of a job and

"moreover, there is ample support for the notion that regular

and pred ictable attendance is an especially essential function

of a government job." Schwertfager v. City of Boynton Beach , 42

F.Supp. 2d 1347, 1362 (S.D.Fla. 1999). Punctuality is

considered to be an essential job function as well. Earl v.

Mervyns, Inc. , 207 F .3d 1361, 1366 (11th Cir. 2000). The

Respondent's Employee Handbook and associated Guidelines for

Discipline, as well as the Petitioner's job description,

reprimands, and counseling all emphasize the essential nature of

attendance for the laborer position .

42. Furthermore, the Petitioner fails to make a prima

facie showing because the Respondent did provide him with a

reasonable accommodation in conformity with 42 U.S.C. Section

12112(b)(4). The Petitioner was accommodated for the limits

imposed by his 35 - pound lifting requirement by being re - assigned

to perform duties at an appropriate level. The Petitioner

testified that he could lift 35 pounds repetitively. 42 U.S.C

Section 12111(9) states that job re - structuring and modified

work schedules are reas onable accommodations.

43. The disability discrimination claim is likewise

deficient under the reasonable accommodation prong of the prima

facie test because the Petitioner failed to request an

accommodation from the Respondent. The "employer's duty to

reasonably accommodate a disabled employee is not triggered

unless the employee specifically demands an accommodation."

Schwertfager , supra . Robert Pullen, ADA Coordinator at FSU,

never received a demand from the Petitioner for an

accommodation. Any rea sonable accommodation provided to the

Petitioner was a result of the Respondent's own initiative as

opposed to a demand on the Petitioner's part.

44. Finally, the Petitioner's claim fails the prima facie

test because there is no evidence the Respondent u nlawfully

fired him because of his disability. To the contrary, the

evidence proves the Petitioner was fired for absence without

authorized leave and violation of the Last Chance Agreement. As

a result, the Petitioner does not meet the burden of proof.

45. Even assuming the Petitioner did prove a prima facie

case of disability discrimination, the Respondent's stated

reasons for the Petitioner's dismissal, absence without

authorized leave and violation of a last chance agreement, are

legitimate, nondiscr iminatory reasons for the firing supported

in the record, which were not shown by the Petitioner to be mere

pretexts for discrimination, by a preponderance of the evidence.

McDonnell , supra . The record contains ample evidence of the

Petitioner's chronic absenteeism, including absences without

authorized leave, as well as the Petitioner's breach of the

conditions of the Last Chance Agreement. This body of evidence

rebuts any presumption of discrimination created by a prima

facie case.

Race Discrimination Claim

46. To prove a prima facie case of race discrimination

based on circumstantial evidence, the Petitioner must prove (1)

he is a member of a protected class; (2) he was subjected to

adverse employment action; (3) his employer treated similarly

situat ed employees outside of his class more favorably; and (4)

he was qualified to do the job. Clermont v. Frenchman's Creek

Country Club, Inc. , 2001 AWL 273144 (S.D.Fla)

47. The Petitioner is a member of a protected class.

48. Termination is considered ad verse employment action

because it is an ultimate decision regarding employment.

Mattern v Eastman Kodak Co. , 104 F.3d 702, 707 (5th Cir. 1997);

Gupta v. Fla. Bd. Of Regents , 212 F.3d 571, 587 (11th Cir.

2000).

49. In an employment discrimination case i nvolving race,

it is necessary to consider whether there are other employees

accused of similar conduct who are disciplined differently.

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999). Courts

"require that the quantity and quality of the comparat or's

misconduct be nearly identical to prevent courts from second

guessing employers' reasonable decisions and confusing apples

with oranges." Id. No comparison can be drawn here because no

evidence was introduced relating to how FSU treated similarly

sit uated employees. Thus, the Petitioner cannot sustain his

burden of establishing a prima facie case.

50. The Respondent also correctly argues that the

Petitioner has not proved a prima facie case because the

Petitioner was not qualified to be a laborer. Attendance is an

essential element of the laborer's duties and the Petitioner

failed to meet this threshold requirement as well.

Schwertfager , supra .

51. Even if the Petitioner could establish a prima facie

case of race discrimination, the Respondent's stated reasons for

terminating the Petitioner, absence without authorized leave and

violation of the Last Chance Agreement, are legitimate,

nondiscriminatory reasons for terminating the Petitioner, and

the Petitioner failed to prove by the preponderance o f the

evidence that the Respondent's reasons are pretexts for

discrimination. Texas Department of Community Affairs v.

Burdine , supra .

Age Discrimination Claim

52. The Petitioner's claim of age discrimination is

insufficient under the law. 29 U.S.C. Se ctions 623,

760.10(1)(a). A prima facie case of age discrimination requires

the Petitioner to demonstrate that he (1) was a member of a

protected age group; (2) was subject to adverse employment

action; (3) was qualified to do the job and; (4) was replace d by

a younger individual. Williams v. Vitro Services Corporation ,

144. F.3d 1438, 1441 (11th Cir. 1998).

53. The Petitioner is in a protected age group under the

Age Discrimination in Employment Act, 29 U.S.C. Section 623.

Also, the Petitioner was sub jected to adverse employment action

because he was terminated. Gupta v. Fla. Bd. Of Regents , supra .

54. However, the Petitioner's attempt to build a prima

facie case is deficient because there is no evidence that would

support a finding that the Petitio ner was replaced by a younger

person. The Petitioner offered no evidence for this crucial

element.

55. Furthermore, the Petitioner's prima facie showing is

also found wanting because he is not qualified: his attendance

violations prevented him from per forming an essential element of

his job. Schwertfager v. City of Boynton Beach , supra .

56. The record simply does not support a finding of a

prima facie case of age discrimination in the Petitioner's

favor, but, even if the burden was met, the Responden t's

legitimate, nondiscriminatory reasons for terminating the

Petitioner rebuts any presumption of age discrimination. In

addition, the Petitioner failed to prove the Respondent's

reasons for firing him are pretextual by a preponderance of the

evidence. Texas Department of Community Affairs v. Burdine ,

supra .

Retaliation Claim

57. The Petitioner has not proven his claim of retaliation

under Section 760.10(7), Florida Statutes and 42 U.S.C. Section

2000e - 3(a). A prima facie case of retaliation contains three

elements: (1) The Petitioner engaged in an activity that Title

VII protects; (2) The Petitioner suffered an adverse employment

action; and (3) The Petitioner shows a causal connection between

participation in a protected activity and the adverse empl oyment

decision.

58. Title VII, 42 U.S.C. Section 2000e - 3(a), protects two

types of employee conduct. First, an employee is protected if

he opposes any unlawful employment practice. McLean v. City of

St. Petersburg , 194 F. Supp. 2d 1290, 1297 (M.D.Fla. 2002).

Second, an employee is protected from retaliation if he makes a

charge, testifies, assists, or participates in any manner in an

investigation, proceeding, or hearing under this subchapter. Id.

These provisions are known as the ”opposition clause" and

"participation clause," respectively. Id.

59. There is no evidence to support a contention that the

Petitioner opposed any unlawful employment practice of the

Respondent's that would offer him protection under the

opposition clause. In fact, the re cord reflects that the

Petitioner did not oppose any employment practice of the

Respondent's, save for the requirement to be present at work on

time.

60. In a similar vein, the Petitioner cannot avail himself

of the participation clause, either. The rec ord is devoid of

any evidence indicating that the Petitioner was involved or

otherwise engaged in any investigation, proceeding, or hearing

involving unlawful employment practices at FSU.

61. Therefore, because the factual record concerning

retaliation i s bare, the Petitioner cannot show the requisite

causal connection and his prima facie case fails.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

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

demeanor of the witnesses, and th e pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED

That a Final Order be entered by the Florida Commission on

Human Relations dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 15th day of July, 2003, in

Tallaha ssee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2003.

COPIES FURNISHED :

Sylvester R. Brown

124 Bermuda Road

Tallahassee, Florida 32312

Joseph B. Donnelly, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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 da te 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.