05-000565 Carlos Gomez vs. Vestcor Companie, D/B/A Madalyn Landing Status: Closed Recommended Order on Monday, August 29, 2005.

Summary: Petitioner failed to establish a prima facie case on allegations of housing discrimination and employment retaliation. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS GOMEZ, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0565

)

VESTCOR COMPANIES, d/b/a )

MADALYN LANDING, )

)

Respondent. )

)

RECOMMENDED ORDER

Purs uant to notice and in accordance with Subsection

120.57(1), Florida Statutes (2005), a formal administrative

hearing was held in this case on June 8, 2005, in Viera,

Florida, before Fred L. Buckine, designated Administrative Law

Judge of the Division of Ad ministrative Hearings.

APPEARANCES

For Petitioner: Carlos Gomez, pro se

1425 Krin Court

Palm Bay, Florida 3290 5

For Respondent: Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33401

and

Jamie B. Goldberg, Esquire

Cole, Scott, and Kissane, P.A.

1390 Brickell Avenue, 3rd Floor

Miami, Florida 33145

S TATEMENT OF THE ISSUE S

The two issues raised in this proceed ing are: (1) whether

the basis and reason Respondent, Vestcor Companies, d/b/a

Madalyn Landings (Vestcor), terminated Petitioner, Carlos

Gomez's (Petitioner), employment on June 28, 2002, was in

retaliation for Petitioner's protected conduct during his no rmal

course of employment; and (2) whether Vestcor committed unlawful

housing practice by permitting Vestcor employees without

families to reside on its property, Madalyn Landing Apartments,

without paying rent, while requiring Vestcor employees with

famil ies to pay rent in violation of Title VII of the Civil

Rights Act of 1968, as amended, and Chapter 760.23, Florida

Statutes (2002).

PRELIMINARY STATEMENT

On August 30, 2002, Petitioner, Carlos Gomez, filed a dual

housing discrimination complaint with the Florida Commission on

Human Relations (FCHR or Commission) and the United States

Department of Housing and Urban Development alleging a violation

of Title VII of the Civil Rights Act of 1968, as amended, by the

Fair Housing Act of 1988, and Chapter 760.23, Florida Statutes

(2002). In his housing discrimination complaint, Petitioner

alleged he was discriminated against based on his familial

status and disability. On February 7, 2003, Petitioner amended

his housing discrimination complaint adding a retaliat ion claim

against his employer. The Commission investigated the complaint

filed by Petitioner.

On January 7, 2005, the Commission issued a Notice of

Determination: No Cause (Notice), and informed Petitioner of his

right to request an administrative hearin g by filing a Petition

for Relief within 35 days of the date of the Notice and that

failure to request an administrative hearing within 35 days of

the date of the Notice would result in a dismissal of the

administrative claim under Florida Civil Rights Act of 1992,

Chapter 760, Florida Statutes (2002), pursuant to Section

760.11, Florida Statutes (2002). Petitioner timely filed his

Petition for Relief on February 9, 2005.

This cause was referred on February 15, 2005, to the

Division of Administrative Heari ng for assignment of an

Administrative Law Judge to conduct all necessary proceedings

required under the law and to submit recommended findings to the

Commission.

On March 3, 2005, a Notice of Hearing scheduling the final

hearing for May 4, 2005, was en tered. On April 7, 2005, Vestcor

filed its Motion for Continuance and by Order of April 24, 2005,

the continuance was granted rescheduling the final hearing for

June 8, 2005.

At the final hearing, Petitioner testified on his own

behalf and presented the testimony of one witness, Nilsa Delgado

f/k/a Nilsa Perez , and offered into evidence ten exhibits

(Pet. A through J ), one of which (Pet . J , a video tape) was not

accepted into evidence.

Vestcor presented the testimony of three witnesses: Kim

Taylor, Brai n Davies, and Genea Closs, all current and/or former

employees of Vestcor. Vestcor offered 2 3 exhibits (R - 1 through

R - 2 3 ), and all were accepted in evidence.

Before taking sworn testimony, the parties were offered an

opportunity to address all preliminar y matters. Vestcor raised

three issues: First, whether Petitioner had standing to claim

discrimination based on familial status when Petitioner was

never married, but only claimed to be married under common law.

Second, whether Petitioner intended to go forward with his claim

for discrimination based on disability. And third, whether

Petitioner would be permitted to present testimony and evidence

regarding his claim for retaliation after he had given sworn

testimony during his deposition that he did not intend to pursue

his claim for retaliation.

With respect to the common law marriage issue and after

inquiry by the undersigned, it was determined Petitioner did not

have standing to base a claim on his familial status. 1/ However,

Petitioner argued the familial status claim was based upon

treatment of other employees who were married and that he should

be able to proceed. In an abundance of caution, he was afforded

the opportunity to present the familial status claim.

With respect to Petitioner's se cond claim based upon

disability, Petitioner, after inquiry by the undersigned,

acknowledged he was voluntarily abandoning his claim based upon

disability.

With respect to Petitioner's claim of retaliation against

Vestcor, after inquiry by the undersigned , it was determined that

Vestcor had been put on notice of this claim with an opportunity

to explore the basis thereof and, therefore, Petitioner could

proceed on that claim. This determination was made

notwithstanding Petitioner's acknowledged relinquish ment of this

claim during his prior deposition by counsel for Vestcor. In

this administrative proceeding alleging discrimination, unduly

strict application of procedural rules that result in a summary

denial of Petitioner's disputed issue of material fact s would be

unjust and improper.

No transcript was filed. Vestcor's Proposed Finding of

Facts and Conclusions of Law was filed on June 21, 2005, and

Petitioner's Proposed Findings of Facts and Conclusions of Law

was filed on July 27, 2005. Both documen ts have been considered

in preparation of this Recommended Order.

References to chapters and sections are to Florida Statutes

(2002) unless otherwise stated.

FINDINGS OF FACT

Based upon observation of the demeanor and candor of each

witness while testif ying, exhibits offered in support of and in

opposition to the respective position of the parties received in

evidence, stipulations of the parties, evidentiary rulings made

pursuant to Section 120.57, Florida Statutes (2002), and the

entire record compiled herein, the following relevant, material,

and substantial facts are determined:

1. Petitioner filed charges of housing discrimination

against Vestcor with the Commission on August 30, 2002.

2. Petitioner alleged that Vestcor discriminated against

hi m based on his familial status and his June 28, 2002,

termination was in retaliation for filing the charge of

discrimination. Vestcor denied the allegations and contend ed

that Petitioner's termination was for cause. Additionally,

Vestcor maintained Petit ioner relinquished his claim of

retaliation before the final hearing; and under oath during his

deposition, asserted he would not pursue a claim for retaliation.

Petitioner was permitted to proffer evidence of retaliation

because Vestcor terminated his em ployment.

3. The Commission's Notice was issued on January 7, 2005.

4. The parties agree that Petitioner was hired by Vestcor

on June 25, 2001, as a leasing consultant agent for Madalyn

Landing Apartments located in Palm Bay, Florida. Petitioner's

job responsibilities as a leasing consultant agent included

showing the property, leasing the property (apartment units), and

assisting with tenant relations by responding to concerns and

questions, and preparing and following up on maintenance orders.

Petiti oner had access to keys to all apartments on site. At the

time of his hire, Petitioner was, as was all of Vestcor

employees, given a copy of Vestcor's Employee Handbook. This

handbook is required reading for each employee for personal

information and fam iliarity with company policies and procedures,

to include the company requirement that each employee personally

telephone and speak with his/her supervisor when the employee,

for whatever reason, could not appear at work as scheduled, which

is a basis and cause for termination.

5. The parties agree that Vestcor's handbook, among other

things, contains company policies regarding equal employment;

prohibition against unlawful conduct and appropriate workplace

conduct; procedures for handling employee probl ems and complaints

associated with their employment; and procedures for reporting

illness or absences from work, which include personal

notification to supervisors, and not messages left on the

answering service. Failure to comply with employment reportin g

polices may result in progressive disciplinary action.

6. The parties agree that employee benefits were also

contained in the handbook. One such employee benefit, at issue

in this proceeding, is the live - on - site benefit. The live - on -

site benefit fir st requires eligible employees to complete a

90 - day orientation period, meet the rental criteria for a tax

credit property, and be a full - time employee. The eligible

employee must pay all applicable security deposits and utility

expenses for the live - on - s ite unit. Rent - free, live - on - site

benefits are available only to employees who occupy the positions

of (1) site community managers, (2) maintenance supervisors, and

(3) courtesy officers. These individuals received a free

two - bedroom, two - bathroom apartm ent at the apartment complex in

which they work as part of their employment compensation package.

The rent - free, live - on - site benefit is not available for

Vestcor's leasing consultant agent employees, such as Petitioner.

7. On or about July 3, 2001, Pet itioner entered into a

lease agreement with Vestcor to move into Apartment No. 202 - 24

located at Madalyn Landing Apartments. The lease agreement ended

on January 31, 2002. The lease agreement set forth terms that

Petitioner was to receive a $50.00 monthl y rental concession,

which became effective on September 3, 2001. Although he was

eligible for the 25 - percent monthly rental concession, to have

given Petitioner the full 25 percent of his monthly rental cost

would have over - qualified Petitioner based upo n Madalyn Landing

Apartment's tax credit property status. Petitioner and Vestcor

agreed he would receive a $50.00 monthly rental concession,

thereby qualifying him as a resident on the property. Petitioner

understood and accepted the fact that he did not qualify for

rent - free, live - on - site benefits because of his employment status

as a leasing consultant agent. Petitioner understood and

accepted Vestcor's $50.00 monthly rental concession because of

his employment status as a leasing consultant agent. Th e rental

concession meant Petitioner's regular monthly rental would be

reduced by $50.00 each month.

8. On September 1, 2001, Henry Oliver was hired by Vestcor

as a maintenance technician. Maintenance technicians do not

qualify for rent - free, live - on - si te benefits. At the time of his

hire, Mr. Oliver did not live on site. As with other employees,

to become eligible for the standard 25 - percent monthly rental

concession benefits, Mr. Oliver was required to complete a 90 - day

orientation period, meet the r ental criteria for a tax credit

property, be a full - time employee, and pay all applicable

security deposits and utility expenses for the unit.

9. On November 13, 2001, Michael Gomez, the brother of

Petitioner (Mr. Gomez), commenced his employment with Vestcor as

a groundskeeper. Groundskeepers did not meet the qualifications

for rent - free, live - on - site benefits. At the time of his hire,

Mr. Gomez did not live on site. As with other employees, to

become eligible for the standard 25 - percent monthly ren tal

concession benefits, Mr. Gomez was required to complete a 90 - day

orientation period, meet the rental criteria for a tax credit

property, be a full - time employee, and pay all applicable

security deposits and utility expenses for the unit.

10. On Nove mber 21, 2001, 81 days after his hire,

Mr. Oliver commenced his lease application process to reside in

Apartment No. 203 - 44 at Madalyn Landing Apartments. Mr. Oliver's

leasing consultant agent was Petitioner in this cause. Like

other eligible Vestcor emp loyees and as a part of the lease

application process, Mr. Oliver completed all required paperwork,

which included, but not limited to, completing a credit check,

employment verification, and income test to ensure that he was

qualified to reside at Madalyn Landing Apartments.

11. Fifteen days later, on November 28, 2001, Mr. Gomez

commenced his lease application process to reside in Apartment

No. 206 - 24 at Madalyn Landing Apartments. As part of the leasing

process, Mr. Gomez, as other eligible Vestcor empl oyees who

intend to reside on Vestcor property, completed all necessary

paperwork including, but not limited to, a credit check and

employment verification and income test to ensure he was

qualified to reside at Madalyn Landing Apartments. Included in

the paperwork was a list of rental criteria requiring Mr. Gomez

to execute a lease agreement to obligate himself to pay the

required rent payment, consent to a credit check, pay an

application fee and required security deposit, and agree not to

take possessio n of an apartment until all supporting paperwork

was completed and approved. Mr. Gomez's leasing consultant was

Petitioner.

12. On December 28, 2001, Petitioner signed a Notice to

Vacate Apartment No. 20 6 - 24, effective February 1, 2002. The

Notice to Vac ate was placed in Vestcor's office files.

Petitioner's reasons for vacating his apartment stated he "needed

a yard, garage, more space, a big family room, and some privacy."

13. Thirty - four days later, February 1, 2002, Mr. Gomez

moved into Apartment No. 20 6 - 24 at Madalyn Landing Apartments

without the approval or knowledge of Vestcor management.

14. On January 9, 2002, a "Corrective Action Notice" was

placed in Petitioner's employee file by his supervisor, Genea

Closs. The notice cited two violations o f Vestcor's policies and

procedures. Specifically, his supervisor noted Petitioner did

not collect administration fees from two unidentified rental

units, and he had taken an unidentified resident's rental check

home with him, rather than directly to the office as required by

policy. As a direct result of those policy violations, Ms. Closs

placed Petitioner on 180 days' probation and instructed him to

re - read all Vestcor employees' handbook and manuals. Petitioner

acknowledged receiving and understanding the warning. At the

time she took the above action against Petitioner, there is no

evidence that Ms. Closs had knowledge of Petitioner's past or

present efforts to gather statements and other information from

Mr. Gomez and/or Mr. Oliver in anticipation a nd preparation for

his subsequent filing of claims of discrimination against

Vestcor.

15. Also, on January 9, 2002, Petitioner was notified that

his brother, Mr. Gomez, did not qualify to reside at Madalyn

Landing Apartments because of insufficient credit . Further,

Petitioner was advised that should Mr. Gomez wish to continue

with the application process, he would need a co - signer on his

lease agreement or pay an additional security deposit. Mr. Gomez

produced an unidentified co - signer, who also complete d a lease

application. On January 30, 2002, the lease application

submitted by Mr. Gomez's co - signor was denied.

16. As a result of the denial of Mr. Gomez's co - signor

lease application, Vestcor did not approve Mr. Gomez's lease

application. When he was made aware that his co - signor's

application was denied and of management's request for him to pay

an additional security deposit, as was previously agreed,

Mr. Gomez refused to pay the additional security deposit. As a

direct result of his refusal, his l ease application was never

approved, and he was not authorized by Vestcor to move into any

Madalyn Landing's rental apartment units.

17. At some unspecified time thereafter, Vestcor's

management became aware that Mr. Gomez had moved into Apartment

No. 206 - 24, even though he was never approved or authorized to

move into an on site apartment. Vestcor's management ordered

Mr. Gomez to remove his belongings from Apartment No. 206 - 24.

Subsequent to the removal order, Mr. Gomez moved his belongings

from Apartme nt No. 206 - 24 into Apartment No. 103 - 20. Mr. Gomez's

move into Apartment No. 103 - 20, as was his move into Apartment

No. 206 - 04, was without approval and/or authorization from

Vestcor's management. Upon learning that his belonging had been

placed in Apart ment No. 103 - 20, Mr. Gomez was again instructed by

management to remove his belongings. After he failed and refused

to move his belongings from Apartment No. 103 - 20, Vestcor's

management entered the apartment and gathered and discarded

Mr. Gomez's belongi ngs. As a leasing contract agent, Petitioner

had access to keys to all vacant apartments. His brother,

Mr. Gomez, who was a groundskeeper, did not have access to keys

to any apartment, save the one he occupied. Any apartment

occupied by Ms. Gomez after his Notice to Vacate Apartment

No. 103 - 20 was without the knowledge or approval of Vestcor and

in violation of Vestcor's policies and procedures. Therefore,

any period of apartment occupancy by Mr. Gomez was not

discriminatory against Petitioner (rent - fre e and/or reduced

rent), but was a direct violation of Vestcor's policies.

18. On February 10, 2002, Mr. Oliver signed a one - year

lease agreement with Vestcor. Mr. Oliver's lease agreement

reflected a 25 - percent employee rental concession. Throughout

Mr. Oliver's occupancy of Apartment No. 203 - 64 and pursuant to

his lease agreement duration, Mr. Oliver's rental history

reflect ed his monthly payment of $413.00. There is no evidence

that Mr. Oliver lived on site without paying rent or that Vestcor

authorize d or permitted Mr. Oliver to live on site without paying

rent, as alleged by Petitioner.

19. On June 2, 2002, Ms. Closs completed Petitioner's

annual performance appraisal report. Performance ratings range

from a one -- below expectations, to a four -- ex ceeds

expectations. Petitioner received ratings in the categories

appraised as follows: Leasing skills -- 4; Administrative

skills -- 2, with comments of improvement needed in paperwork,

computer updating, and policy adherence; Marketing skills -- 4,

wit h comments that Petitioner had a flair for finding the right

markets; Community awareness -- 3, with no comment;

Professionalism -- 2, with comments of improvement needed in

paperwork reporting; Dependability -- 2, with comments of

improvement needed in at tendance; Interpersonal skills -- 3, with

no comments; Judgment/Decision - making -- 3, with no comments;

Quality of Work -- 2, with comments that work lacked accuracy;

Initiative -- 4, with no comment; Customer service -- 3, with no

comments; Team work -- 2 , with comments of improvement needed in

the area of resident confidence; Company loyalty -- 2, with

comments of improvement needed in adherence to company policy and

procedures; and Training and development -- 3, with no comments.

Petitioner's Overall ra ting was 2.5, with comments that there was

"room for improvement."

20. On June 27, 2002, while on 180 days' probation that

began on January 9, 2002, Petitioner failed to report to work and

failed to report his absence to his supervisor, Ms. Closs, by a

per son - to - person telephone call. This conduct constituted a

violation of Vestcor's policy requiring all its employees to

personally contact their supervisor when late and/or absent from

work and prohibited leaving messages on the community answering

service machine.

21. On June 28, 2002, Petitioner reported to work.

Ms. Closs, his supervisor, informed Petitioner of his termination

of employment with Vestcor for failure to report to work ( i.e.

job abandonment) and for probation violation, as he had been

warn ed on January 9, 2002, what would happen should a policy

violation re - occur. It was after his June 28, 2002, termination

that Petitioner began his personal investigation and gathering of

information ( i.e. , interviews and statements from other Vestcor

empl oyees) in preparation to file this complaint.

22. Considering the findings favorable to Petitioner, he

failed to establish a prima facie case of retaliation by Vestcor,

when they terminated his employment on June 28, 2002.

23. Considering the findings of r ecord favorable to

Petitioner, he failed to establish a prima facie case of housing

and/or rental adjustment discrimination by Vestcor, based upon

familial status of himself or any other employer.

24. Petitioner failed to prove Vestcor knowingly and/or

int entionally permitted, approved, or allowed either Mr. Gomez or

Mr. Oliver to live on site without a completed and approved

application followed by appropriate rent adjustments according to

their employment status and keeping within the tax credit

requireme nt, while requiring Vestcor employees with families (or

different employment status) to pay a different monthly rent in

violation of Title VII of the Civil Rights Act of 1968.

25. Petitioner failed to prove his termination on June 28,

2002, was in retaliat ion for his actions and conduct other than

his personal violation, while on probation, of Vestcor's policies

and procedures.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsections 120.57(1)

and 760.11(7), Florida Statutes (2004).

27. Just as the Fair Housing Act of 1988, 42 U.S.C. Section

3604(b), makes it unlawful to discriminate against any person in

terms, conditions, or pr ivileges of sale, rental of a dwelling,

or in the provision of services of facilities in connection

therewith because of race, color, religion, sex, familial status,

or national origin, so does Subsection 760.23(2), Florida

Statutes (2002).

28. Statutory construction in Florida recognizes that if a

state law is patterned after a federal law on the same subject,

the Florida law will be accorded the same construction as in the

federal courts to the extent the construction is harmonious with

the spirit of th e Florida legislation. O'Loughlin v. Pinchback ,

579 So. 2d 788, 790 (Fla. 1st DCA 1991), citing Kidd v. City of

Jacksonville , 97 Fla. 297, 120 So. 556 (1929); Massie v.

University of Florida , 570 So. 2d 963 (Fla. 1st DCA 1990);

Holland v. Courtesy Corp. , 563 So. 2d 787 (Fla. 1st DCA 1990).

29. To establish a prima facie case of discrimination based

on familial status, Petitioner must establish, by a preponderance

of the evidence, each of the following: (1) he is a parent

domiciled with an individual who has not attained the age of 18

years; (2) he was qualified to receive rent - free benefits; and

(3) despite his qualification, he was denied free rent because of

his familial status. See Martin v. Palm Beach Atlantic

Association , 696 So. 2d 919 (Fla. 4th DC A 1997).

30. There is no credible evidence of record that Petitioner

was qualified to receive free rent, that he was a parent

domiciled with an individual not yet 18 years of age, or that he

was qualified to receive free rent. Indeed, the evidence is to

the contrary. Petitioner, because of his employment position,

was entitled, after the appropriate period of 180 days, to a

standard reduction in his rent. Petitioner was not employed in

the position of a property manager, maintenance supervisor, or a

cou rtesy officer, all of whom rent - free entitlement was a part of

their respective compensation package. Petitioner knowingly

agreed to a $50.00 monthly rental deduction that he might qualify

to live on Vestcor's tax credit property.

31. As a leasing consult ant and like other employees,

Petitioner was entitled to a 25 - percent monthly rental

concession. To have given him more would have over - qualified

Petitioner and prevented his living on site at Madalyn Landing

Apartments.

32. To establish a prima facie cas e of retaliation under

Title VII, Petitioner must establish by a preponderance of the

evidence that he: (1) was engaged in a statutorily - protected

activity; (2) suffered adverse employment action; and (3) the

adverse employment action was causally related to the protected

activity. See Coutu v. Martin County Board of Commissioners ,

47 F.3d 1068, 1074 (11th Cir. 1995).

33. An employee is protected from discrimination if (1) he

has opposed any practice made an unlawful practice by this sub -

chapter (oppositio n clause), or (2) he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter

(participation clause). 42 U.S.C. § 2000e - (3)a.

34. Petitioner must establish that he was engaged in a

statutorily - protected activity and must show that while doing so,

he possessed a good faith reasonable belief that Vestcor was

engaged in unlawful employment practice. See Little v. Un i ted

Tech., Carrier Transicold Div. , 103 F.3d 956, 960 (11th Cir.

1997), citing Rollins v. State of Fla. Dept. of Law Enforcement ,

868 F.2d 397 (11th Cir. 1989).

35. In this proceeding, Petitioner was not qualified to

receive a rent - free unit in Vestcor's apartment complex.

Petitioner's ineligibility resulted from his e mployment position

( i.e. , leasing consultant) and not any other activity in which he

engaged.

36. In this proceeding, Petitioner was qualified to receive

a 25 - percent monthly rental concession; however, such a

concession would have removed him from the tax credit status. It

was by Petitioner's agreement with his employer that he exchanged

his 25 - percent monthly rental concession to a flat $50.00 monthly

rental reduction.

37. Petitioner proffered no evidence that Vestcor, at any

time pertinent to these proc eedings, knowingly engaged in

unlawful employment practice with Mr. Gomez, Mr. Oliver, or any

other employee either in their respective employment or the terms

and conditions of their housing rental rate and accommodations.

38. Petitioner proffered no evid ence that Vestcor, at any

time pertinent to these proceedings, knowingly engaged in

unlawful discrimination and/or unlawful employment practice in

the treatment of its married employees that was different from

the treatment he received during his employmen t.

39. On June 27, 2002, while on 180 days' probation that

began on January 9, 2002, Petitioner failed to report to work and

failed to report his absence to his supervisor, Ms. Closs.

Petitioner's termination on June 28, 2002, was for cause, after

warnin g.

40. Assuming arguendo that Petitioner erroneously believed

that Vestcor provided rent - free apartments to Messrs. Oliver and

Gomez and that Petitioner set about gathering statements from

them regarding their apartment rental agreements with Vestcor for

future use in litigation, Petitioner failed to produce evidence

that Vestcor was actually aware that Petitioner was gathering

statements at the time Vestcor terminated his employment on

June 28, 2002. Put differently, Petitioner failed to produce

evidenc e to satisfy the "causal link," that his termination was

taken in retaliation for his prior conduct ( i.e. , engaged in a

statutorily - protected activity) of securing information to be

used in future litigation. See Goldsmith v. City of Atmore , 996

F.2d 1155 , 1163 (11th Cir. 1993) . Petitioner has not established

the third prong for establishing a prima facie case for

retaliation.

41. Petitioner produced no credible evidence of record that

Vestcor's legitimate non - discriminatory reason for his

termination, h ereinabove found, is pretext.

RECOMMENDATION

Based on the foregoing, Findings of Fact and Conclusions of

Law, it is

RECOMMENDED the Florida Commission on Human Rights enter a

final order dismissing the Petition for Relief alleging

discrimination filed by Petitioner, Carlos Gomez.

DONE AND ENTERED this 29th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 29th day of August, 2005.

ENDNOTE

1/ Chapter 741.211, Florida Statutes (2002), provides that "[n]o

common law marriage entered into after January 1, 1998, shall be

valid, except that nothing contained in this section shall

affect any marriage which, though otherwise defective, was

entered into by the party as serting such marriage in good faith

and in substantial compliance with this chapter." See Gonzales -

Jimenez de Ruiz v. U.S. , 378 F.3d 1229 (11th Cir. 2004).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apa lachee Parkway, Suite 100

Tallahassee, Florida 32301

Carlos Gomez

1425 Krin Court

Palm Bay, Florida 32901

Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard,

Second Floor

West Palm Beach, Florida 33401

Jamie B. Gold berg, Esquire

Cole, Scott, and Kissane, P.A.

1390 Brickell Avenue, 3rd Floor

Miami, Florida 33145

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMI T 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.