05-002974 Lucy Cabrera vs. Hialeah Housing Authority Status: Closed Recommended Order on Monday, January 8, 2007.

Summary: Petitioner proved a prima facie case of age discrimination but failed to prove that a non-discriminatory reason for termination was a pretext. Recommend that the Petition for Relief be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCY CABRERA, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2974

)

HIALEAH HOUSING AUTHORITY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Augus t 8, 2006 , by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Pet itioner: Joel A. Bello, Esquire

3780 West Flagler Street

Miami, Florida 33134

For Respondent: J. Frost Walter, III , Esquire

Law Offices of Citrin & Walker

100 West Sunrise Avenue

Coral Gables, Florida 33133

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner

on the basis of her age, in violation of Section 760.10, Florida

Statutes (20 04) , 1 the Florida Civil Rights Act of 1992, as

amended.

PRELIMINARY STATEMENT

On February 18, 2005, Lucy Cabrera filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations ("FCHR"), naming the Hialeah Housing Authority

( "Housing Authority") as the Respondent. In the complaint,

Ms. Cabrera stated: "I believe I was discriminated [against]

because of my age (50) , " and she set forth the basis for her

complaint as follow s :

I was employed with the respondent for two

years, [s ic] During my employment I was

subjected to discrimination based upon my

age (50). Celi Ervesun, Capital Fund

Coordinator, said to me that I was too old

for the job. Also, she stated that I am not

a fit for the job. On February 20, 2004, I

was termina ted, and the reason for dismissal

was I failed to follow direction. In

addition, I was replaced by two younger

employees (20).

On June 29, 2005, the FCHR issued a Determination: No Cause, in

which it stated that it had found that "no reasonable cause

ex ists to believe that an unlawful employment practice

occurred." Ms. Cabrera timely filed a Petition for Relief with

the FCHR , in which she alleged "Discrimination of Age" and noted

that she would provide specifics in "other paperwork to follow."

No other paperwork was attached to the Petition for Relief.

The FCHR forwarded Ms. Cabrera's Petition for Relief to the

Division of Administrative Hearings for assignment of an

administrative law judge. Pursuant to notice, the final hearing

was held on August 8, 2006. At the hearing, Ms. Cabrera

testified in her own behalf, and, pursuant to the agreement of

the parties, the testimony of John Esposito was presented by

deposition, the transcript of which was filed with the Division

of Administrative Hearings on Oct ober 23, 2006. Petitioner's

Exhibits 1 and 2 were received into evidence. The Housing

Authority presented the testimony of Celi E r ves u n and Jose

Martinez. Respondent's Exhibits A through U were offered into

evidence and received pursuant to stipulation of the parties.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on August 21, 2006. The

parties agreed that the Proposed Recommended Orders would be

filed within 20 days after the filing of the deposition

transcrip t of Mr. Esposito with the Division of Administrative

Hearings. This deposition transcript was filed on October 23,

2006, and the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

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

following findings of fact are made:

1. In February 2002, Ms. Cabrera was hired by the Housing

Authority as the Assistant to the Capital Funds Program

Coordinator ("CFP Coordinator") . The CFP Coordinator was, at

all times material to this proceeding, Celi Ervesun , who was

Ms. Cabrera's direct supervisor .

2 . At the times material to this proceedin g, Ms. Cabrera

was over 40 years of age.

3 . At the times material to t his proceeding, the Capital

Funds Program ("CFP") d epartment was responsible for managing

construction projects involving the moderniz ation of the public

housing buildings under the jur isdiction of the Housing

Authority, as well as for any other construction work being

undertaken by the Housing Authority and any major maintenance

projects costing over $12,000.

4 . The position of a ssistant to the CFP Coordinator was

advertised, and Ms. C abrera was one of several persons in the

pool of applicants chosen by the Executive Director of the

Housing Authority, Jose Morales, for interviews. Ms. Ervesun

interviewed Ms. Cabrera an d recommended to Mr. Morales that

Ms. Cabrera be offered the positio n . On the basis of

Ms. Cabrera's résum é and the interview, Ms. Ervesun believed

that Ms. Cabrera had the qualifications necessary for the

position as her assistant. Ms. Ervesun was not aware of

Ms. Cabrera's age when she recommended that Ms. Cabrera be

h ired.

5 . Among the major duties and responsibilities of the

assistant to the CFP Coordinator was assist ing the CFP

Coordinator in preparing materials and forms for bid packages

for construction work to be performed under the CFP; assist ing

with the prepar ation of numerous work documents associated with

the CFP; assist ing with the preparation of reports; serv ing as

the CFP Coordinator's secretary and receptionist; and

maintaining " an accurate and up - to date the [sic] file system

and all records and forms th at involve the construction contract

administration of all modernizations works." 2

6 . When she first began working at the Housing Authority,

Ms. Cabrera appeared to be interested in her job, and she

performed her assigned tasks well and willingly. As tim e

passed, however, Ms. Ervesun noticed that Ms. Cabrera was not

completing assignments timely and was not sufficiently

knowledgeable about construction management to enable her to

understand fully the requirements of her job.

7 . In Ms. Cabrera's annual ev aluation, completed in

February 2003, Ms. Ervesun rated Ms. Cabrera "Below Average" in

technical and operational job knowledge and in planning and

organizing. Ms. Ervesun noted that the CFP had many ongoing

projects and that Ms. Cabrera needed to improve her time -

management skills and her ability to plan and use her time well.

Ms. Ervesun noted that Ms. Cabrera "has a positive attitude and

is ready to attend all seminars that could improve her ability

to perform her tasks." 3

8 . When Ms. Ervesun actually asked Ms. Cabrera to attend

seminars, however, Ms. Cabrera refused to travel , outside Miami,

Florida. Although there were few relevant seminars in Miami,

Ms. Ervesun made arrangem ents for Ms. Cabrera to attend one

seminar in Miami. Shortly before the sem inar was scheduled to

take place, Ms. Ervesun was out of town and Ms. Cabrera

expressed her intention not to attend the seminar. This came to

the attention of Jose Martinez, who was the Director of

Administration for the Housing Authority at the time, and

Mr. Martinez ordered Ms. Cabrera to attend the seminar , which

she did .

9 . The organization and maintenance of construction -

projec t files was of particular concern to Ms. Ervesun. The CFP

department had been closed prior to Ms. Ervesun's being hired in

J anuary 2002, and the project files kept by the CFP had not been

properly maintained. Because many of the projects undertaken by

the Housing Authority and overseen by the CFP used government

funds, federal agencies, including the Department of Housing and

Urban Development and the Army Corps of Engineers, frequently

audited the project files maintained by the CFP . It was,

therefore, essential that the files be kept up - to - date and

organized in accordance with a checklist provided to Ms. Ervesun

by the Army Corps of Engineers after it found during an audit in

February 2002 that the CFP project files were in disarray.

10 . At the time of the Army Corps of Engineers' audit, the

CFP department was housed in a very small space. Ms. Ervesun

decided to wait until the department moved into larger office

space to begin the task of organizing the files in accordance

with the guidelines provided by the Army Corps of Engineers.

The move occurred in April 2003, and Ms. Ervesun expected

Ms. Cabrera to begin working in ea rnest on the files at that

time .

11 . At any given time, the CFP Coordinator oversaw

approximately 60 projects . T he project files were quite

extensive and included many documents that had to be organized

in accordance with the guidelines provided by the A rmy Corps of

Engineers. Ms. Ervesun sug g ested to Ms. Cabrera that she work

on the files at least one hour each day to clear up the backlog

in filing and to keep the files current. Ms. Ervesun found,

however, that Ms. Cabrera made very little progress in

organizing the files and also failed to complete other essential

job responsibilities timely , such as verifying payrolls for

w orkers on construction projects, another task required by the

federal agencies providing funding for the construction

projects.

12 . By the fall of 2003, Ms. Ervesun had bec o me

increasingly unhappy about Ms. Cabrera's failure to complete

assigned tasks and her tendency to make numerous mistakes in her

work . Ms. Ervesun often raised her voice to Ms. Cabrera and

expressed her displeas ure with the way Ms. Cabrera w as doing her

job. John Esposito , whose office was next to Ms. Cabrera's and

Ms. Ervesun's office, overheard Ms. Ervesun , in a loud voice,

tell Ms. Cabrera that she was stupid and incompetent ; that the

quality of her work was not satisfactory; that she needed to

stop making the same mistakes over and over ; and that she needed

to do better work . In Mr. E sposito 's opinion, Ms. Ervesun was

unprofessional in some of her dealings with Ms. Cabrera , and he

considered Ms. Ervesun's to ne of voice to be demeaning to

Ms. Cabrera and her treatment of Ms. Cabrera abusive.

13 . Ms. Cabrera related one incident that she considered

particularly humiliating: She was asked by Ms. Ervesun and

several co - workers to take off her shoes so they coul d measure

her height to prove that she was not really 5'3" tall, as she

claimed. Ms. Cabrera believed that Ms. Ervesun made fun of her

because she was short.

14 . Mr. Esposito observed Ms. Cabrera in tears on a number

of occasions, and Ms. Cabrera complai ned to him about the way

Ms. Ervesun treated her and about what Ms. Cabrera considered

Ms. Ervesun's incompetence .

15 . Ms. Ervesun mentioned several times to Mr. Esposito

that she needed to replace Ms. Cabrera because she was not doing

her job.

16 . In th e fall of 2003, both Ms. Ervesun and Ms. Cabrera

discussed with Mr. Martinez the problems each was having with

the other. Ms. Ervesun told Mr. Martinez that Ms. Cabrera was

making a lot of mistakes in her work and asked Mr. Martinez to

talk to Ms. Cabrera about her job performance. 4 Before he began

counseling Ms. Cabrera about her job performance , however,

Mr. Martinez conducted his own investigation , and he confirmed

that Ms. Cabrera was , in fact, making numerous mistakes ,

especially in maintaining the p roject files . When Mr. Martinez

began counseling Ms. Cabrera, she consistently denied making the

mistakes identified by Ms. Ervesun and told Mr. Martinez that

Ms. Ervesun was "picking on her" about her job performance.

17 . After a counseling session, Ms. Cabrera would do

better for a while but then lapse back into making careless

mistakes in filing or in the preparation of reports. On the

occasions when Ms. Ervesun complained to Mr. Martinez about

Ms. Cabrera's mistakes, he personally looked at the files and

satisfied himself that Ms. Cabrera was actually making the

mistakes Ms. Ervesun complained about.

18 . Mr. Martinez believed the situation could be improved

if Ms. Cabrera would put in the effort and if she and

Ms. Ervesun w ould work together as a tea m . Mr. Martinez advised

Ms. Ervesun to help Ms. Cabrera correct her mistakes in keeping

the files by putting in writing the way she wanted the files

orga nized and maintained. Ms. Ervesun had consistently told

Ms. Cabrera that t he files needed to be organ ized in accordance

with the guidelines provided in February 2002 by the Army Corps

of Engineers.

19 . Except for the observations included in Ms. Cabrera's

February 2003 evaluation, the first time Ms. Ervesun put any of

her complaints in w riting to Ms. Cab rera was in a memorandum

dated October 10, 2003. In that memorandum, Ms. Ervesun told

Ms. Cabrera to concentrate on getting the project files in

order.

20 . On December 12, 2003, Ms. Ervesun wrote Ms. Cabrera

another memorandum regarding Ms. Cabrera 's fai lure to finish

organizing the project files and her failure to mak e sure that

all filing was current . Ms. Ervesun referred to a discussion

she and Ms. Cabrera had on "Wednesday," presumably December 10,

2003, in which Ms. Ervesun had asked Ms. Cabrera to provide her

a written report on the status of the files and filing "by the

end of the day." 5 Ms. Ervesun noted that Ms. Cabrera had not

provided the status report as of December 12, 2003. Ms. Ervesun

directed Ms. Cabrera to have the report on her desk by

December 15, 2003, but extended the deadline to December 16,

2003, because the computers were down on December 15.

21 . On December 22, 2003, Ms. Ervesun wrote to Ms. Cabrera

requesting that she provide her with the status report

Ms. Cabrera was to have p rovided on December 1 6 , 2003.

Ms. Cabrera responded that afternoon with the status of the

files in five of the file drawers. Ms. Ervesun replied on

December 23, 2003, that she needed the status of the files in

the remaining eight file drawers.

22 . At so me point during her employment with the Housing

Authority, Ms. Cabrera joined the employees' union. Ms. Ervesun

was not aware at the time that Ms. Cabrera had joined the union

and was not concerned that she had done so. When Mr. Martinez

learned that Ms. Cabrera had joined the union, he involved

Ms. Cabrera's union representative in the efforts to help her

improve her performance. Mr. Martinez also offered to allow

Ms. Cabrera to work overtime, for additional pay, to catch up

with her work , but Ms. Cabre ra did not take advant age of this

opportunity .

23 . On January 14, 2004, Ms. Ervesun was advised that

Ms. Cabrera had not provided corrected advertisements for an up -

coming bid solicitation in time for the publication deadline,

resulting in the bid solicit ation having to be revised to

include a new deadline.

24 . On January 16, 2004, Ms. Ervesun issued a Final

Warning to Ms. Cabrera, with the agreement of Mr. Martinez and

Mr. Morales, the Housing Authority's Executive Director. In the

Final Warning, Ms. Er vesun pointed out a number of deficiencies

in Ms. Cabrera's job performance and stated that Ms. Cabrera

would be given 10 days to bring her "job tasks and

responsibilities up to departmental standards" or face

disciplinary action that could include termina tion. 6

25 . Ms. Cabrera was actually given over 30 days to correct

her performance deficiencies, but she failed to complete

assigned tasks timely and continued to make mistakes in filing

and in preparing reports. Ms. Cabrera was advised in a

memorandum fr om Mr. Martinez dated February 20, 2004, that the

Housing Authority's Executive Directo r had terminated her

employment based on her "repeated failure to follow

instructions" and on the following:

On several occasions the Capital Fund

Program Coordinator me t with you to discuss

the many pending issues (e.g., files not

updated, failure to verify certified

payroll, failure to complete assignments on

time) that currently exist in the Capital

Fund Department and to date most of those

issues a re still pending. Y ou failed to act

upon the orders and the written warning

given to you in the presence of you r Union

Representative on January 16, 2004 in order

to resolve all the pending issues.

Furthermore, other tasks that were assigned

to you have yet to be completed (i.e., list

identifying files in storage). Your failure

to follow instructions is a violation of the

Authority's Personnel Rules and Regulations,

Rule XXV, A. Category I, 6 - "failure to

follow instructions. [ 7 ]

26 . Ms. Cabrera was advised of her right t o appeal the

decision by filing a grievance, which she did through her union

representative. Ms. Cabrera attached a "Grievance Report" to

the Employee Grievance form, in which she objected to her

termination and stated various grounds for her contention t hat

her termination was not warranted ; none of the grounds mentioned

by Ms. Cabrera referred to age discrimination . After a hearing

before the Housing Authority's Board of Commissioners, the

decision to terminate Ms. Cabrera was upheld.

27 . Ms. Cabrera w as replaced as assistant to the CFP

Coordinator by a young woman who was under 30 years of age. The

replacement was hired on Ms. Ervesun's recommendation after

following the routine procedure for filling job - vacancies at the

Housing Authority.

Summary

28 . Ms. Cabrera offered no persuasive direct evidence to

establish that her termination was the result of discrimination

because of her age. The only direct evidence that Ms. Cabrera

offered was her o wn self - serving testimony , which is not

credited, that M s. Ervesun had told her that she was too old for

the assistant's job and that Ms. Ervesun had told her she

intended to re place Ms. Cabrera with a younger person.

Ms. Cabrera conceded that no one overheard Ms. Ervesun make

these remarks ; she did not file a formal complaint with the

Human Relations Department that Ms. Ervesun was discriminating

against her on the basis of her age; she did not complain

verbally to Mr. Martin ez or Mr. Esposito that Ms. Ervesun's

treatment of her was based on her age ; and she d id not include

an allegation of age discrimination in the grievance that the

union filed on her behalf to challenge her termination.

29 . T he evidence presented by Ms. Cabrera was sufficient

to establish that she was over 40 years of age at the relevant

ti mes, that she was terminated from her employment, that she was

initially considered qualified for the position as assistant to

the CFP Coordinator, and that she was replaced by a younger

person. The evidence presented by the Housing Authority

established that Ms. Cabrera was terminated because she did not

perform her job responsibilities satisfactorily , after a number

of warnings and counseling sessions , and Ms. Cabrera did not

submit any evidence to establish that this proffered reason for

her termination was a fabrication or was otherwise unworthy of

belief.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Flor ida Statutes (2006 ).

31 . Section 760.10, Florida Statutes, part of the Florida

Civil Rights Act of 1992, as amended, provide s in pertinent

part :

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an y individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employmen t

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

32 . Florida courts routinely rely on decisions of the

federal cour ts construing Title VII of the Civil Rights Act of

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

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

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

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

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

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

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

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

33 . Ms. Cabrera has the burden of proving by a

preponderance of the evidence that s he was the victim of

employment discrimination, and s he can establish discrimination

either through direct evidence of discrimination or through

circumstantial evide nce , which is evaluated within the framework

of the burden - shifting analysis first articulated in McDonald

Douglas Corp. v. Green , 411 U.S. 792, 802 - 04 (1973). See Logan

v. Denny's Inc. , 259 F.3d 558, 566 - 67, 567, n. 2 ( 11t h Cir.

2006 ).

34 . " Direct evide nce of discrimination is evidence which,

if believed, would prove the existence of a fact in issue

without inference or presumption. Only the most blatant

remarks, whose intent could be nothing other than to

discriminate on the basis of [age] constitute d irect evidence of

discrimination." Bass v. Board of County Comm'rs, Orange

County, Florida , 256 F.3d 1095, 1105 (11th Cir. 2001).

35 . Based on the findings of fact herein, Ms. Cabrera has

presented no persuasive direct evidence that s he was

discrimin ated against because of her age , and s he must,

therefore, rely on the presumption set forth in McDonald Douglas

to establish a prima facie case of age discrimination by show ing

that (1) s he was a t least 40 years old; (2) s he suffered an

adverse employment acti on; (3) she was qualified to do the job ;

and (4) she was replaced by someone substantially younger. See

Haas v. Kelly Servs. Inc. , 409 F . 3d 1030, 1035 ( 8th Cir . 2005);

Chapman v. AI Transp. , 229 F.3d 1012, 1024 (11th Cir. 2000) . If

Ms. Cabrera satisfies her burden of proving a prima facie case

of age discrimination, the burden of producing evidence then

shifts to the Housing Authority to produce evidence articulating

" a legitimate, non - discriminatory reason" for terminating

Ms. Cabrera. Id. If the Housi ng Authority meets this burden,

Ms. Cabrera must prove tha t the non - discriminatory reason

offered by the Housing Authority to justify her termination is

pretext. Jones v. School Dist. of Philadelphia , 198 F.3d 403,

410 (3d Cir. 1999).

36 . Ms. Cabrera can establish pretext by presenting

evidence that casts doubt on the reason for termination offered

by the Housing Authority and supports the conclusion that the

reason offered was a fabrication or by presenting evidence

sufficient to support an inference tha t Ms. Cabrera's

termination was more likely than not motivated by

discrimination. See Fuentes v. Perskie , 32 F.3d 759, 762

(3d Cir. 1994). The evidence offered to establish that the

reason offered by the Housing Authority for Ms. Cabrera's

termination wa s pretext "must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered reasons for its

action that a reasonable factfinder could rationally find them

unworthy of credence, and hence infe r that the employer did not

act for [the asserted] non - discriminatory reasons." Id.

37 . Based on the findings of fact herein, Ms. Cabrera has

met her burden of establishing a prima facie case of age

discrimination: During her employment with the Housing

Authority she was over 40 years of age; she was terminated from

her position as assistant to Ms. Ervesun; Ms. Ervesun initially

considered her qualified to do the job; and she was replaced by

a person under 30 years of age. However, b ased on the findings

of fact herein, t he Housing Authority met its burden of

establishing a legitimate, non - discriminatory reason for

Ms. Cabrera's termination: Ms. Cabrera's job performance was

unsatisfactory , and her job performance did not improve after

she was given coun seling, assistance, and additional time to

complete her assigned tasks . Finally, b ased on the findings of

fact herein, t he evidence offered by Ms. Cabrera was not

sufficient to establish that the reasons given by the Housing

Authority for her termination were pretext . Ms. Cabrera,

therefore, did not prove by a preponderance of the evidence that

the Housing Authority discriminated against her on the basis of

her age when it terminated her employment in February 2004. 8

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

filed by Lucy Cabrera.

DONE AND ENTERED this 8th day of January , 2007, in

Tallahassee, Leon Co unty, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administ rative 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 8th day o f January , 2007.

ENDNOTES

1 / All references to the Florida Statutes shall be to the 2004

edition unless otherwise indicated.

2 / Respondent's Exhibit E.

3 / Respondent's Exhibit F.

4 / Tra nscript at page 134.

5 / Respondent's Exhibit I.

6 / Respondent's Exhibit 0.

7 / Respondent's Exhibit Q.

8 / Ms. Cabrera attempted to broaden the issues presented in her

Employment Complaint of Discrimination and Petition for Relief

to include a charge that she had been subjected to a hostile

work environment and that her termination was in retaliation for

joining the employee's union. The evidence presented by

Ms. Cabrera is sufficient to establish that Ms. Ervesun's

behavior toward her became increas ingly abusive and demeaning

prior to her termination. Nonetheless, even if Ms. Cabrera had

requested prior to hearing that the charges against the Housing

Authority be expanded to include a charge that Ms. Ervesun

subjected her to a hostile work environme nt, Ms. Cabrera did not

present any evidence to connect Ms. Ervesun's behavior with

discrimination based on her age. Kamal Al - Zubaidy v. TEK

Indus., 406 F.3d 1030, 1038 (8th Cir. 2005) (T o establish hostile

work environment claim, it must be shown, among other things,

that " the harassment was based on a protected charact eristic

under Title VII . . . ."). In addition, even if Ms. Cabrera had

timely presented a claim that her termination was in retaliation

for her joining the union, union membership is not an activity

protected under Sections 760.01 through .11, Florida St atutes,

and cannot support an action for retaliatory discharge under

Section 760.10(7), Florida Statutes.

COPIES FURNISHED:

D enise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

J. Frost Walker, III, Esquire

Law Offices of Citrin & Walker

100 West Sunrise Avenue

Coral Gables, Florida 33133

Joel A. Bello, Esquire

Joel Bello, P.A.

3780 West Flagler Street

Miami, Florida 33134 - 1602

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Flo rida 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 th e final order in this case.