06-001650 James P. Saemenes, Personal Representative Of The Estate Of Barbara J. Taylor vs. City Of Fort Walton Beach Status: Closed Recommended Order on Tuesday, July 31, 2007.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. SAEMENES, PERSONAL )

REPRESENTATIVE OF THE ESTATE OF )

BARBARA J. TAYLOR, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1650

)

CITY OF FORT WALTON BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER ON REMAND

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted i n Shalimar, Florida, on April 18, 2007. The

appearances were as follows:

APPEARANCES

Petitioner: No Appearance

Respondent: Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Str eet

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Petitioner's decedent, Barbara J. Taylor, was discriminated

against in an employment decision (termination) by the

Respondent based upon her gender and alleged disability.

PRELIMINARY STATEMENT

This cause arose upon remand from the Florida Commission on

Human Relations and an Order accepting that Remand entered by

the undersigned. Barbara J. Taylor, Petitioner, filed an

original Complaint and Petition for Relief with the Florida

Commission on Human Relations (Commission) prior to her death.

Pursuant to that Petition under original Case No. 02 - 4317, a

partial hearing was conducted, which had to be continued.

Bef ore the case could be re - set for hearing, and heard, it

developed, upon motion by the then Petitioner, Barbara J.

Taylor, that she had had a severe medical condition arise

(ultimately terminal cancer) which required (without objection)

a lengthy abatement of her case. The abatement lasted in excess

of a year due to her medical situation, attested to by her

physician. During the pendency of that abatement and before the

case could be re - set for hearing, Ms. Taylor died. Thereafter,

after issuing a show ca use order concerning jurisdiction, an

order was entered by the undersigned dismissing the case in

essence for lack of jurisdiction and mootness. The matter then

remained with the Commission for a substantial period of time,

but was ultimately remanded to the Administrative law Judge

based upon the Commission's determination that jurisdiction had

not lapsed and, citing Section 46.021, Florida Statutes (2003),

the Commission took the view that the cause of action under

Chapter 760 did not expire with the per son who filed it and

could still be prosecuted by the original Petitioner's Personal

Representative.

Thereafter, an Order Accepting the Remand was entered by

the undersigned, although the reasons and legal authority

delineated in that Order were not the same as the reason the

Commission elected to remand the matter to the Administrative

Law Judge originally. The parties, by that Order were required

to advise the undersigned within 21 days concerning their

pleasure about prosecuting the decedent's cl aim, proceeding to

hearing and the scheduling of a hearing. The Petitioner did not

so respond and thereafter a Show Cause Order was issued on

August 18, 2006, concerning the Petitioner's intention about

prosecuting the claim. The Petitioner responded to the Show

Cause Order and finally, with the parties' assent the case was

scheduled again on December 19, 2006. It was again continued

because two key witnesses could not be present. Thereafter, it

was re - scheduled for February 1, 2007, but had to be cont inued

once again because of a medical emergency experienced by counsel

for the Respondent. The case thus finally came on for hearing

on the above - referenced date.

During the pendency of this proceeding, Mr. Saemenes, the

Personal Representative of the Est ate of Barbara J. Taylor, had

moved to have the case decided upon the "evidence and papers"

already submitted, indicating that he wanted the matter decided

without hearing. Pursuant to an Order entered November 15,

2006, the undersigned explained that the evidence had not been

completed in the earlier case and that the Respondent was

entitled to an opportunity to put on its case. Consequently,

the hearing was scheduled and conducted on the above date. The

Petitioner elected not to appear at the hearing, after being

duly and appropriately noticed at the Petitioner's last known

address of record. Consequently, the evidence was concluded

with the conclusion of the Respondent's case and such of the

Petitioner's evidence (three witnesses and seven exhibits) a s

had been adduced at the original hearing, before the death of

Barbara J. Taylor. The Respondent presented one witness and

seven exhibits which were admitted into evidence.

Upon conclusion of the proceeding the Respondent announced

its intent to order a transcript thereof and to submit a

proposed recommended order. After granting an extension of

time, the Proposed Recommended Order of the Respondent was

timely submitted on May 21, 2007, and has been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, James Saemenes, is the Personal

Representative of the Estate of Barbara J. Taylor. Barbara J.

Taylor was the Petitioner's sister. Ms. Taylor, at times

pertinent to the facts in this case, had been an employee of the

Utilities Department of the City of Fort Walton Beach, working

in the Utility Wastewater Treatment Facility Laboratory as

Laboratory Manager. The Petitioner, Mr. Saemenes, did not

participate in the hearing.

2. The City of Fort Walton Beach provi des public utilities

to its citizens including wasterwater operations. Mr. John

Hofstad is employed as the utilities director for the city, and

oversees the city's wastewater operation. Mr. Hofstad was

Ms. Taylor's supervisor at times pertinent to this c ase. The

wastewater operation is responsible for collection and treatment

of raw waste to suitable discharge standards.

3. There are 13 individuals employed at the wastewater

treatment facility. The positions consist of one plant

supervisor, eight li censed wastewater treatment plant operators,

one pre - treatment coordinator, two maintenance employees, and

one laboratory manager. Ms. Taylor was the laboratory manager

at times pertinent to this case and her immediate supervisor,

Mr. Hofstad was responsi ble for evaluating her work and

initiating any discipline against her, if necessary.

4. Her duties included managing the day - to - day activities

of the laboratory, collecting samples throughout the facility,

analyzing samples, managing the quality assuranc e and quality

control plan required by the State of Florida and associated

daily paperwork. Her duties required effective cooperative

interaction with other employees of the facility and the city on

a daily basis.

5. Over a substantial period of time, M r. Hofstad received

numerous complaints and expressions of concern from almost every

employee regarding the appropriateness of Ms. Taylor's conduct

while at work. Employees complained that she was intimidating

and abrasive toward them. She demeaned fello w members of the

staff based upon their educational background or their level of

knowledge about the operations and their jobs.

6. Mr. Hofstad counseled Ms. Taylor on a number of

occasions regarding her co - workers' concerns. Mr. Hofstad

witnessed Ms. Ta ylor harassing Mr. McDowell, the Pre - treatment

Coordinator, while working in his office. Specifically, she

physically placed an object in Mr. McDowell's pocket despite his

previous request for her to refrain from distracting him.

Mr. McDowell became visi bly upset when Ms. Taylor thereafter

made an obscene gesture towards him as she left the office area.

Mr. Hofstad drafted a memorandum on December 6, 1996, pertaining

to the aforementioned incident and provided a written

disciplinary action form to Ms. Ta ylor because of it.

7. Mr. Hofstad executed a personnel evaluation regarding

Ms. Taylor on December 9, 1996. She received an unsatisfactory

rating in the area of cooperation with fellow employees and

team - work. Mr. Hofstad gave Ms. Taylor that rating d ue to

numerous employee complaints indicating that Ms. Taylor had

initiated confrontations.

8. Thereafter on March 6, 1998, Mr. Hofstad drafted a

memorandum regarding a confrontation which had occurred the day

before between Ms. Taylor and Mr. James Whit ley. Without

authorization Ms. Taylor directed Mr. Whitley to stop conducting

certain tests because they would interfere with her job.

Ms. Taylor possessed no supervisory authority over Mr. Whitley.

9. When Mr. Hofstad intervened in the situation Ms. Taylor

spoke to him in a insubordinate loud and hostile fashion. She

raised her voice at Mr. Hofstad and stated that he did not know

how to do his job much like the other individuals employed by

him. Mr. Hofstad considered her tone and manner to be

inap propriate and insubordinate. He executed a Notice of

Disciplinary Action based on Ms. Taylor's actions and demeanor

and gave her a copy.

10. Thereafter on or about May 14, 1998, Mr. Hofstad was

again verbally assaulted by Ms. Taylor. She spoke in an

en raged, loud, and abusive manner in the presence of several

subordinate employees.

11. Ms. Taylor stated that Mr. Hofstad had no control over

the laboratory.

12. Following this incident which he also considered

insubordination, Mr. Hofstad spoke to the Public Works Director

his superior, Mr. Mark Tate, regarding Ms. Taylor's conduct.

Mr. Tate reviewed Ms. Taylor's disciplinary history and in

conjunction with Mr. Hofstad determined that the best course of

action, after having tried graduated discipline w as to terminate

her employment.

13. Mr. Hofstad and Mr. Tate spoke with the Human

Resources Department Director regarding Ms. Taylor's behavior

and potential termination. The Director of Human Resources

agreed that Ms. Taylor's termination was appropria te considering

her history of progressive discipline and current misconduct

amounting to repeated insubordination.

14. Thus Ms. Taylor's employment was terminated. Her

termination was not based upon her gender. In fact, she was

replaced in her positi on with another female, Ms. Harriett

Holloway. The current laboratory manager, Melissa Woodall, is a

female.

15. Mr. Hofstad never discouraged Ms. Taylor from filling

out complaint forms during the course of her employment. In

fact, he provided such fo rms to Ms. Taylor in the event that she

had a complaint. Her termination was not related to any

complaint filed by her, or for engaging in any other protected

activity such as applying for vocation rehabilitation benefits

or assistance.

16. Further, her termination was not related to any health

conditions she possessed. Mr. Hofstad at the time was unaware

of any disability or health condition endured by Ms. Taylor. He

did not perceive her as disabled. She was fully capable of

performing the duties of her job in terms of her physical

abilities and would have continued to be employed but for the

misconduct referenced above. She never requested any

accommodations for any disability or impairment in the workplace

from Mr. Hofstad or others in a supervisor y role.

17. Neither Mr. Hofstad, nor any other witness, described

any occasion where Ms. Taylor was harassed by operations staff.

According to unrefuted evidence of record, Ms. Taylor was always

the harasser of other employees. Moreover, when Ms. Taylo r

sought assistance from Mr. Hofstad, he promptly addressed her

concerns in a reasonable, unbiased way. The Petitioner never

testified in this proceeding.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

19. The Petitioner has the initial burden of establishing

a prima facie case of gender or disability discrimination or

retaliation and bears the ultimate burden o f persuasion in this

case. St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

In order to prove a valid claim of gender discrimination, the

Petitioner must prove her prima facie case either through direct

evidence of discriminatory intent or by creat ing an inference of

discrimination through circumstantial evidence. See , e.g. ,

Earley v. Champion Int'l Comp. , 907 F.2d 1077, 1081 (11th Cir.

1990). Direct evidence in an employment discrimination case is

evidence which, if believed, "establishes discrim inatory intent

without inference or presumption.” Earley , 907 F.2d at 1081;

Clark v. Coats & Clark, Inc. , 990 F.2d 1217, 1226 (11th Cir.

1993). "Only the most blatant remarks whose intent could only

be to discriminate constitute direct evidence." Earley , supra

at 1081 (citing Carter v. City of Miami , 870 F.2d 578, 581 - 582

(11th Cir. 1989). Evidence which only suggests discrimination,

leaving the trier of fact to infer discrimination based on the

evidence is circumstantial evidence. Earley , supra at 108 1 - 82.

20. In order to establish a prima facie case of gender

discrimination, the Petitioner must prove:

1. She was a member of a protected group;

2. That an adverse employment action

occurred; and

3. An individual who was not in the

protected group r eceived the position after

the Petitioner's termination.

McDonnell - Douglas Corporation v. Green , 411 U.S. 792, 802, 93

S.Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973); Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981); Carter v.

City of Miami , supra .

21. If a Petitioner establishes a prima facie case of

gender discrimination, the burden of production shifts to the

Respondent employer, who must articulate a legitimate, non -

discriminatory reason for the adverse employment action. Texas

D epartment of Community Affairs v. Burdine , supra . See also

Pace v. Southern Railway System , 701 F.2d 1383, 1391 (11th Cir.

1983). If a Respondent thus articulates a legitimate, non -

discriminatory reason for its action, the Petitioner must "put

on suffici ent evidence to allow a fact - finder to disbelieve an

employer's proffered explanation for its actions." Combs v.

Plantation Patterns , 106 F.3d 1519 (11th Cir. 1997); see also

St. Mary's Honor Center v. Hicks , supra . Therefore, if a prima

facie case is es tablished, the case will turn on whether a

Respondent has articulated a legitimate, non - discriminatory

reason for the action and correspondingly whether the Petitioner

has provided sufficient evidence for a fact - finder to believe

that the Respondent's actu al motivation in taking the action

against the Petitioner is pre - textual and actually involved

discriminatory motives.

22. In the case at hand the Petitioner in the underlying

original proceeding, Barbara J. Taylor, (Petitioner) alleged

that her terminati on was motivated by gender and disability

discrimination. She failed to produce any direct evidence of

discrimination associated with her discharge and therefore must

prove the case, if at all, through circumstantial evidence.

Moreover, the Petitioner wa s replaced by a member of her own

protected class, a female. Thus she cannot meet that part of

the test for her prima facie case of gender discrimination.

Ms. Taylor was replaced by a female, Harriett Halloway, and, as

of the time of the most recent hear ing, the current lab manager

is Melissa Woodall, a female.

23. Absent direct evidence of discrimination, the

Petitioner has the burden of establishing a prima facie case of

gender discrimination in employment by showing: (1) that the

Petitioner is a me mber of a protected class, female;

(2) Petitioner was qualified for the job for which she was

terminated; (3) that the Petitioner was terminated despite her

job qualifications; and (4) that an employee outside the

protected class replaced the Petitioner, o r employees outside

the protected class were treated differently than the

Petitioner. Hawkins v. CECO Corp. , 883 F.2d 977, 982, 984 (11th

Cir. 1989); Bush v. Barnett Bank of Pinellas County , 916 F.

Supp. 1244 (M.D. Fla. 1996).

24. In order to establish a prima facie case of disability

discrimination, the Petitioner must establish that he or she was

disabled, that he or she was qualified to perform the job in

question and was discriminated against by the employer for

reasons of the disability. See Reid v. Heil Co. , 206 F.3d 1055,

1061 (11th Cir. 2000). The Petitioner has not established the

elements of a prima facie case of disability discrimination.

The Petitioner must prove that she was disabled and the city was

aware of her condition. Claims under th e Florida Civil Rights

Act, Chapter 760, Florida Statutes (2006), for disability

discrimination are analyzed under the same framework as

Americans With Disabilities Acts (ADA) claims. See Chanda v.

Engelhard/ICC , 234 F.3d 1219 (11th Cir. 2000); O'Loughlin v.

Pinchback , 579 So. 2d 788 (Fla. 1st DCA 1991). See also Reid ,

supra at 1061. The Petitioner has not presented evidence which

establishes a disability under either the Florida Civil Rights

Act (FCRA) or the ADA. A physical impairment alone is not a

d isability under the ADA or the FCRA. See Pritchard v. Southern

Co. Servs ., 92 F.3d 1130, 1132 (11th Cir. 1996), amended in part

on rehearing by 102 F.3d 1118 (11th Cir. 1996). Disability is

defined as: (1) a physical or mental impairment that

substantia lly limits one or more of the major life activities of

such individual; (2) having a record of such impairment; or (3)

being regarded as having such an impairment, i.e. being regarded

by the employer as having such an impairment. See 42 U.S.C. §

12102(2).

25. Although the Petition alleges an impairment, the

Petitioner has not established that the impairment substantially

limited any of her major life activities. Additionally, Mr.

Hofstad was not made aware of any impairments suffered by the

Petitioner d uring the period of her employment.

26. Moreover, at final hearing, the Petitioner did not

provide any testimony that identified a major life activity in

which she had a substantial limitation at times pertinent to her

employment and the employment decisi on at issue. In order to be

considered "substantially limited," the Petitioner must

demonstrate that she was: (1) unable to perform a major life

activity that the average person and the general population can

perform; (2) was significantly restricted as to the condition,

manner, or duration under which the individual can perform a

major life activity, as compared to the condition, manner, or

duration under which the average person in the general

population can perform that same major life activity. See 2 9

C.F.R. § 1630.2(j)(1). Major life activities are defined as

functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working. See 29 C.F.R. § 1630.2(i)(2001). The Petitioner's

failure to identify a major life activity that was substantially

limited by an alleged impairment during employment is fatal to

the claim in this case. There is no evidence concerning how the

Petitioner, Ms. Taylor, was restricted in any manner in

performing any major life activity during the time she was

employed and the employment decision at issue was made and

carried out.

27. The Petitioner has not presented evidence that she had

a record of having a substantially limiting impairment, or that

the Respondent r egarded her as having such an impairment or

disability. The Petitioner's failure to identify a major life

activity which was limited by any impairment in a substantial

way, bars a disability claim. See , e.g. , Federov v. Board of

Regents for the Universit y of Georgia , 194 F. Supp. 2d 1378

(S.D. Georgia 2002) (holding that a Petitioner's claim, regarded

as an ADA claim, was barred where the Petitioner failed to

establish a substantial limitation in a major life activity).

28. The Petitioner did not testi fy in the hearing in this

case. Although she produced witnesses who testified to their

perceptions of her conditions (the Petitioner declined to call

any treating physician as a witness), no witness testified to

any such condition being known by any repre sentative of the

Respondent or to observing any discriminatory act on the part of

the Respondent. Likewise, no witness rebutted the evidence that

Ms. Taylor was not qualified to continue in her employment as a

result of her repetitive acts of insubordinat ion and her failure

to work cooperatively and appropriately with other city

employees. Thus, for this reason she was not qualified for her

position, although intellectually and physically, at the time,

she was capable of performing it. Therefore she fail ed to

establish a prima facie case of either gender or disability

discrimination for the above reasons.

29. Assuming arguendo that the Petitioner had established

a prima facie case of gender or disability discrimination, the

burden of production would shi ft to the Respondent who must

articulate a legitimate, non - discriminatory reason for the

adverse employment action taken. Texas Department of Community

Affairs v. Burdine , supra ; Pace v. Southern Railway System ,

supra . If the Respondent meets this burden , then the Petitioner

must put on evidence sufficient to allow the fact - finder to

disbelieve the employer's reason or proffered explanation.

Combs , supra . The question would thus remain whether the

Respondent established a sufficient articulation of a

le gitimate, non - discriminatory reason for the employment action

and whether the Petitioner provided sufficient evidence in order

to believe that the reason for the employment action advanced by

the Respondent is, in reality, pre - textual and, instead, was

bas ed upon a discriminatory motivation.

30. Mr. Hofstad, at the final hearing testified, as the

city's utilities director, to the reasons why termination was

necessary. Specifically, he disciplined the Petitioner for

repeated acts of insubordination, host ility, and aggressive

actions toward the Petitioner's co - workers. The Petitioner

routinely belittled her colleagues and engaged in conduct that

was perceived as demeaning and threatening to them. Mr. Hofstad

documented several instances of such behavior and counseled with

the Petitioner about it on multiple occasions. Although the

Petitioner would accept the warnings and modify her behavior for

a short time or a few days, she would inevitably return to

inappropriate conduct and, in fact, increased her ag gressive

behavior over time. Following an incident in front of

subordinate employees, the Petitioner was terminated for

berating her supervisor in an insubordinate manner. The

Petitioner's gender or health was not a factor in the

termination decision.

31 . Even if the Petitioner established the presence of a

disability, which was not done because the Petitioner did not

meet the above definitional requirements for establishing a

disability, the Respondent did not have any knowledge of the

disability, so it could not have been a factor in the decision

to terminate her. Rather, the termination was based upon

repeated disciplinary offenses and insubordination towards her

supervisor.

32. Moreover, there is no showing that any accommodation

for any supposed disability was ever requested of the Respondent

and the claimant for a disability must affirmatively request an

accommodation. See Gaston v. Bellingrath Gardens & Home, Inc. ,

167 F.3d 1361, 1363 (11th Cir. 1999). The Petitioner herein

never requested an accommodation for any alleged disability from

the Respondent and there was not shown to be any duty on the

part of the Respondent to provide her with any reasonable

accommodation. She had no record of a disability at that time.

33. The Respondent's burd en to show a legitimate, non -

discriminatory reason for the employment action is merely one of

production or articulation of such a reason. It need not

persuade the court that it was actually motivated by the

proffered reason. See Texas Department of Comm unity Affairs v.

Burdine supra , Combs , supra .

34. The Respondent has presented evidence regarding the

repeated disciplinary actions necessary to be taken against the

Petitioner, which culminated in her termination. Although the

Petitioner was capable of performing the technical aspects of

her job, the job also required that she work effectively and

cooperatively with other staff members. She was unable to

perform this necessary aspect of the laboratory manager

position. She repeatedly mocked, belittled , and demeaned her

co - workers. She created confrontations and distracted others

from their work. This became the subject of numerous complaints

and concerns expressed by co - workers. The Petitioner was

repeatedly advised to moderate her behavior. She di d not

moderate her behavior in a satisfactory way. Her repeated

infractions and insubordination, as described more particularly

in the above Findings of Fact, ultimately led to her

termination. As such the Respondent has articulated, asserted,

and, in fa ct, proven by preponderant evidence, a legitimate,

non - discriminatory reason for termination of the Petitioner,

Ms. Taylor.

35. Accordingly, in order to prevail, the Petitioner must

establish that the articulated, legitimate reasons were a pre -

text to mas k what was really unlawful discrimination. See

Turlington v. Atlanta Gas Light Company , 135 F.3d 1428 (11th

Cir. 1998). There is no evidence in this record to indicate

that the reasons for the Petitioner's termination advanced by

the Respondent in its ev idence were not compelling and

legitimate ones. There is no showing in the evidence that there

was any motive in the employment decision and in the progressive

discipline run - up to that decision that involved discrimination

on account of gender or on the basis of disability for the

above - found and concluded reasons.

36. In summary, the Petitioner has failed to establish a

prima facie case of discrimination based upon gender, disability

or retaliation. She was terminated due to legitimate non -

discrimina tory reasons as found and concluded above after

receiving progressive discipline before the termination decision

was made. She was replaced by a member of her protected class

and has not established that any alleged impairment

substantially limited one of her major life activities; that her

employer knew, or was on notice, of her disability or that her

employer denied a reasonably requested accommodation for any

disability. Nor has the Petitioner adduced any evidence to show

that the employment action tak en was in retaliation for the

Petitioner asserting any protected right or status. There is no

evidence that the action was taken based upon any prior

complaints the Petitioner may have submitted, or because she may

have availed herself of any opportunity for vocational

rehabilitation rights or benefits.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

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

demeanor of the witnesses, and the 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 31st day of July, 2007, in

Tallahassee, 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

Fi led with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 2007.

COPIES FURNISHED :

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Denise Crawford, Agency Clerk

Florida Commission 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

James P. Saemenes, Personal Re presentative

46 Higgins Road

Brighton, Tennessee 38011 - 3602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.