09-000093 Alan Mollick vs. Unitech Status: Closed Recommended Order on Thursday, May 14, 2009.

Summary: Petitioner failed to prove that he did not receive a job offer because he had filed an employment discrimination complaint against a former employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN MOLLICK, )

)

Petitioner, )

)

vs. ) Case No. 09-0093

)

UNITECH, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

March 17, 2009, by telephone conference call.

APPEARANCES

For Petitioner: Alan Mollick, pro se

204 Salem Drive

Pennsville, New Jersey 08070

For Respondent: Andrew J. Marchese, Esquire

Marshall Dennehey Warner Coleman

and Googin, P.C.

One East Broward Boulevard, Suite 500

Fort Lauderdale, Florida 33130

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

practice alleged in the employment discrimination complaint

Petitioner filed with the Florida Commission on Human Relations

(FCHR) and, if so, what relief should Petitioner be granted.

PRELIMINARY STATEMENT

On June 23, 2008, Petitioner filed a employment

discrimination complaint (Complaint) with the FCHR, alleging

that Respondent had unlawfully retaliated against him. His

Complaint contained the following "Discrimination Statement":

I believe Unitech did not hire me due to

malicious information provided by my

previous employer ITT. In January 2008, I

went on an interview at Unitech for the

position of Software Engineer. I was

interviewed by Manager Ed Kaprocki. The

interview went exceptionally well and I

anticipated being hired. I called Ed

Kaprocki, and asked why I was not hired,

after finding out I did not get the

position. I was told that it was because of

my background investigation. He said that

there were things that I had "said" which

were very bad. I asked him if this was

something on the Internet and he said that

it was. I then asked him if it was

something to do with ITT (itt.com) and his

answer was "yes." After that, Mr. Kaprocki

became very evasive and I could not gather

any more information. It was apparent that

Unitech had contacted my previous employer,

ITT, without my consent. My resume clearly

stated that ITT was not to be contacted for

any reason. It is an invasion of privacy to

do any background investigation without me

signing a consent form, which I was never

asked to do. In addition, the reason I did

not want ITT to be contacted was that I had

known for over a year that I was being

blacklisted by the company in retaliation

for a previous EEOC complaint filed after my

termination. The reason for not contacting

ITT was explained to Mr. Kaprocki during my

interview.

On December 3, 2008, the FCHR, following the completion of

its investigation of the Complaint, issued a Notice of

Determination: No Cause. Petitioner, on January 5, 2009, filed

with the FCHR a Petition for Relief (Petition), in which he

alleged that "Respondent ha[d] violated the Florida Civil Rights

Act of 1992, [a]s [a]mended, in the manner specifically

described below":

Denied employment in retaliation for me

filing an EEOC complaint against a previous

employer, or other discrimination. Invasion

of privacy in an attempt to find excuses not

to hire me (Google search).

He further stated in the Petition the following:

THE DISPUTED ISSUES OF MATERIAL FACT, IF

ANY, ARE AS LISTED BELOW:

Respondent's statements indicate that I do

not communicate well, am not a team player,

and somehow, that I am a bad person, all of

which is not true. Therefore, I was not

hired due to retaliation or discrimination

due to a disability but NOT for the reasons

given by respondent.

THE ULTIMATE FACTS ALLEGED & ENTITLEMENT TO

RELIEF ARE AS LISTED BELOW:

I was the victim of blacklisting prior to

interviewing at Unitech. Unitech was made

aware that I had filed an EEOC complaint

against my former employer. Unitech

perpetuated the blacklisting, then came up

with other excuses for not hiring me. Seek

relief=$100K or job.

On January 8, 2009, the FCHR referred the matter to DOAH

for the assignment of a DOAH administrative law judge to

"conduct all necessary proceedings required under the law and

submit recommended findings to the [FCHR]." The undersigned was

thereafter assigned the case, and he scheduled a final hearing

for March 17, 2009. On March 5, 2009, Respondent filed a Motion

for Summary Final Order, arguing that "no genuine issue of

material fact exists in this case, and the record evidence

clearly shows that UNITECH is entitled to judgment as a matter

of law."

On March 6, 2009, the undersigned issued an Order Denying

Motion for Summary Final Order, which provided, in pertinent

part, as follows:

A motion for summary final order may be

granted only in those cases where the

administrative law judge has final order

authority. § 120.57(1)(h)("Any party to a

proceeding in which an administrative law

judge of the Division of Administrative

Hearings has final order authority may move

for a summary final order when there is no

genuine issue as to any material fact.").

Because he does not have final order

authority in the instant case, the

undersigned cannot grant the relief

Respondent has requested. Moreover, the

undersigned is unable to state with

confidence from a review of the record, as

it now exists, that "no genuine issue of

material fact exists in this case." (There

is case law supporting the proposition that

the refusal to hire a prospective employee

"because that person pursued a

discrimination charge against another

employer . . . constitute[s] unlawful

retaliation." See Jones v. GES Exposition

Services , No. 02 C 6243, 2004 U.S. Dist.

LEXIS 6665 *15-16 (N.D. Ill. April 15, 2004)

and the cases cited therein.) Accordingly,

neither may the undersigned relinquish

jurisdiction of the instant matter to the

FCHR pursuant Section 120.57(1)(i), Florida

Statutes, which provides as follows:

"When, in any proceeding conducted

pursuant to this subsection, a dispute of

material fact no longer exists, any party

may move the administrative law judge to

relinquish jurisdiction to the agency.

An order relinquishing jurisdiction shall

be rendered if the administrative law

judge determines from the pleadings,

depositions, answers to interrogatories,

and admissions on file, together with

supporting and opposing affidavits, if

any, that no genuine issue as to any

material fact exists. If the

administrative law judge enters an order

relinquishing jurisdiction, the agency

may promptly conduct a proceeding

pursuant to subsection (2), if

appropriate, but the parties may not

raise any issues of disputed fact that

could have been raised before the

administrative law judge. An order

entered by an administrative law judge

relinquishing jurisdiction to the agency

based upon a determination that no

genuine dispute of material fact exists,

need not contain findings of fact,

conclusions of law, or a recommended

disposition or penalty."

In view of the foregoing, Respondent's

Motion for Summary Final Order is hereby

DENIED.

As noted above, the final hearing in this case was held on

March 17, 2009. Two witnesses, Petitioner and Edward Kaprocki,

testified at the hearing. In addition, nine exhibits

(Petitioner's Exhibits 1 through 4, and Respondent's Exhibits 1

through 5) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the

undersigned, on the record, set the deadline for filing proposed

recommended orders at 30 days from the date of the filing of the

hearing transcript with DOAH.

The Transcript of the final hearing (consisting of one

volume) was filed with DOAH on April 9, 2009. Accordingly,

proposed recommended orders had to be filed no later than

Monday, May 11, 2009.

Respondent filed its Proposed Recommended Order on May 7,

2009. To date, Petitioner has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is a software engineer with almost 30 years

of experience in the industry.

2. From 2001 until August of 2006, Petitioner was employed

by ITT Industries (ITT).

3. Petitioner's employment with ITT came to an end when he

was involuntarily terminated.

4. Following his termination, Petitioner filed an

employment discrimination complaint with the federal Equal

Employment Opportunity Commission (EEOC) alleging that ITT had

discriminated against him because he suffered from Tourette's

syndrome (which caused him to have vocal tics and to stutter).

5. Petitioner did not take any action to pursue these

allegations of employment discrimination beyond filing this

complaint against ITT with the EEOC.

6. Petitioner has been unable to obtain a "permanent job"

as a software engineer since his termination by ITT.

7. Respondent is a defense contractor that "make[s]

[military] simulation and training equipment."

8. In early 2008, Respondent was looking to fill a

temporary software engineer position.

9. Edge Dynamics was one of the outside employment

agencies that Respondent used to assist it in the hiring

process.

10. On January 9, 2008, Edge Dynamics provided

Petitioner's resume to Edward Kaprocki, a senior principal

software engineer with Respondent. Mr. Kaprocki was responsible

for interviewing applicants for the position and making

hiring/rejection recommendations.

11. After reviewing Petitioner's resume, Mr. Kaprocki

"thought [it] looked interesting enough where it would worth

talking to [Petitioner]," and he so advised Sandra Asavedo, his

"point of contact" at Edge Dynamics.

12. Ms. Asavedo made the necessary arrangements to set up

a face-to-face interview between Mr. Kaprocki and Petitioner.

13. The interview took place in Mr. Kaprocki's office on

January 14, 2008. It lasted about 45 minutes to an hour.

14. Petitioner seemed to Mr. Kaprocki to be "a little bit

nervous," but Petitioner did not do or say anything to cause

Mr. Kaprocki to believe that Petitioner suffered from any

disability.

15. During the course of the interview, Petitioner showed

Mr. Kaprocki his personal website, which contained information

about and pictures of "some of the projects that [Petitioner]

had worked on."

16. Based on the interview, Mr. Kaprocki determined that

Petitioner did not have the skill-set that was needed for the

position Respondent was seeking to fill.

17. Immediately following the interview, Mr. Kaprocki went

to his supervisor, Steve Preston, whose office was "right down

the hall," and recommended that Petitioner not be hired to fill

the position.

18. Mr. Kaprocki then telephoned Ms. Asavedo to let her

know that Petitioner was not going to be hired so that she could

inform Petitioner.

19. Mr. Kaprocki's decision to recommend against hiring

Petitioner had nothing to do with Petitioner's suffering from

Tourette's syndrome or his having filed an EEOC complaint

against ITT. Indeed, at the time he made his decision,

Mr. Kaprocki did not even know that Petitioner had Tourette's

syndrome or had filed an EEOC complaint against ITT.

Mr. Kaprocki first learned of these matters only after

Petitioner had filed his Complaint in the instant case.

20. After being told that he would not be hired for the

position, Petitioner telephoned Mr. Kaprocki several times,

pleading with Mr. Kaprocki to "reconsider hiring him."

Mr. Kaprocki told Petitioner "that the decision had been made"

and would not be reconsidered.

21. Mr. Kaprocki felt that Petitioner, by making these

telephone calls, was "badgering and harassing him."

22. To satisfy his own personal curiosity (and for no

other reason), Mr. Kaprocki looked online to find out more about

the person who was subjecting him to this "badgering and

harass[ment]." 2

23. Mr. Kaprocki did not discover, as a result of his

online search, that Petitioner had Tourette's syndrome or that

Petitioner had filed an EEOC complaint against ITT.

24. His search, however, did reveal certain comments

Petitioner had made in an online forum that Mr. Kaprocki

considered to be "extremely unprofessional." After reading

these comments, Mr. Kaprocki was even more confident than he had

been before he began his search that he had made the right

decision in not recommending Petitioner for employment.

25. Petitioner was never offered a position with

Respondent.

CONCLUSIONS OF LAW

26. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes, and Section

509.092, Florida Statutes. "The Act, as amended, was

[generally] patterned after Title VII of the Civil Rights Acts

of 1964 and 1991, 42 U.S.C. § 2000, et seq ., as well as the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 623.

Federal case law interpreting [provisions of] Title VII and the

ADEA is [therefore] applicable to cases [involving counterpart

provisions of] the Florida Act." Florida State University v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); see also

Carter v. Health Management Associates , 989 So. 2d 1258, 1262

(Fla. 2d DCA 2008)("Because this provision of the FCRA [Section

760.10(7), Florida Statutes] is almost identical to its federal

counterpart, 42 U.S.C. § 2000e-3(a), Florida courts follow

federal case law when examining FCRA retaliation claims.").

27. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the FCHR the

authority, if it finds following an administrative hearing

conducted pursuant to Sections 120.569 and 120.57, Florida

Statutes, that such an "unlawful employment practice" has

occurred, to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." 3 §§ 760.10 and 760.11(6), Fla. Stat.

28. To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlawful employment

practice" must, "within 365 days of the alleged violation," file

a complaint ("contain[ing] a short and plain statement of the

facts describing the violation and the relief sought") with the

FCHR, the EEOC, or "any unit of government of the state which is

a fair-employment-practice agency under 29 C.F.R. ss. 1601.70-

1601.80." § 760.11(1), Fla. Stat. This 365-day period within

which a complaint must be filed is a "limitations period" that

can be " be equitably tolled, but . . . only [based on the] acts

or circumstances . . . enumerated in section 95.051," Florida

Statutes. Greene v. Seminole Electric Co-op., Inc. , 701 So. 2d

646, 648 (Fla. 5th DCA 1997).

29. "[T]o prevent circumvention of the [FCHR's]

investigatory and conciliatory role, only those claims that are

fairly encompassed within a [timely-filed complaint] can be the

subject of [an administrative hearing conducted pursuant to

Sections 120.569 and 120.57, Florida Statutes]" and any

subsequent FCHR award of relief to the complainant. Chambers v.

American Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

30. In the instant case, Petitioner alleged in the

employment discrimination complaint that he filed with the FCHR

on June 23, 2008, that Respondent's failure to have hired him

for the temporary software position for which he interviewed

earlier that year constituted unlawful "retaliation."

31. The "anti-retaliatory provisions" of the Act are found

in Section 760.10(7), Florida Statutes, which provides as

follows:

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 employment

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.

"Courts have commonly referred to [these anti-retaliatory]

provisions [of Section 760.10(7), Florida Statutes] as the

participation and opposition clauses." Guess v. City of

Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004). "The FCRA's

opposition clause protects employees who have opposed unlawful

employment practices. . . . The FCRA's participation clause

protects an employee from retaliation if he or she made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under the FCRA." Carter ,

989 So. 2d at 1263 (internal quotation marks omitted). "Cases

involving retaliatory acts committed after the employee has

filed a charge with the relevant administrative agency usually

arise under the participation clause." Id.

32. Petitioner had the burden of proving, at the

administrative hearing held in this case, that he was the victim

of the unlawful "retaliation" alleged in his Complaint. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996)("'The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.'"); and Florida Department

of Health and Rehabilitative Services v. Career Service

Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he

burden of proof is 'on the party asserting the affirmative of an

issue before an administrative tribunal.'").

33. Retaliation prohibited by Section 760.10(7), Florida

Statutes, amounts to intentional discrimination. See Stubbs v.

Department of Transportation , No. 02-1437, 2002 Fla. Div. Adm.

Hear. LEXIS 1366 *20 (Fla. DOAH October 3, 2002)(Recommended

Order)("The retaliation claim fails because Mr. Stubbs did not

establish that he engaged in any statutorily protected activity

nor that there was any discriminatory animus."); cf. Jackson v.

Birmingham Board of Education , 544 U.S. 167, 178 (2005)("[T]he

text of Title IX prohibits a funding recipient from retaliating

against a person who speaks out against sex discrimination,

because such retaliation is intentional 'discrimination' 'on the

basis of sex.' We reach this result based on the statute's

text. In step with Sandoval , we hold that Title IX's private

right of action encompasses suits for retaliation, because

retaliation falls within the statute's prohibition of

intentional discrimination on the basis of sex.").

34. "Discriminatory [or retaliatory] intent may be

established through direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001);

see also United States Postal Service Board of Governors v.

Aikens , 460 U.S. 711, 714 (1983)("As in any lawsuit, the

plaintiff [in a Title VII action] may prove his case by direct

or circumstantial evidence. The trier of fact should consider

all the evidence, giving it whatever weight and credence it

deserves.").

35. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory [or retaliatory] intent

without resort to inference or presumption." King v. La Playa-

De Varadero Restaurant , No. 02-2502, slip op. at 15 n.9 (Fla.

DOAH February 19, 2003)(Recommended Order); see also Wilson v.

B/E Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004)("Direct

evidence is 'evidence, that, if believed, proves [the] existence

of [a] fact without inference or presumption.'"). "If the

[complainant] offers direct evidence and the trier of fact

accepts that evidence, then the [complainant] has proven

discrimination [or retaliation]." Maynard v. Board of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

36. "[D]irect evidence is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate [or retaliate]' on the basis of some impermissible

factor. . . . If an alleged statement at best merely suggests a

discriminatory [or retaliatory] motive, then it is by definition

only circumstantial evidence." Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Likewise, a statement "that is

subject to more than one interpretation . . . does not

constitute direct evidence." Merritt v. Dillard Paper Co. , 120

F.3d 1181, 1189 (11th Cir. 1997).

37. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

38. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981)" is applied. "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the employer to 'articulate' a legitimate, non-discriminatory

reason for its action.[ 4 ] If the employer successfully

articulates such a reason, then the burden shifts back to the

[complainant] to show that the proffered reason is really

pretext for unlawful discrimination." Schoenfeld , 168 F.3d at

1267 (citations omitted); see also Ruby v. Springfield R-12

Public School District , 76 F.3d 909, 911 (8th Cir. 1996)("Ruby's

retaliation claims are also analyzed under this shifting burden

framework."); and Brewer v. AmSouth Bank , No. 1:04CV247-P-D,

2006 U.S. Dist. LEXIS 35762 *25 (N.D. Miss. May 25,

2006)("Analysis of a retaliation claim proceeds under the same

McDonnell Douglas-Burdine shifting burden framework as other

claims arising under Title VII.").

39. "To establish a prima facie [case of] retaliation

under [Section 760.10(7), Florida Statutes] a [complainant] must

demonstrate: 1) he engaged in statutorily protected activity;

2) he suffered an adverse employment action; and 3) there is a

causal relation between the two events." Guess , 889 So. 2d at

846.

40. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[complainant] remains at all times with the [complainant]."

EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007)("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times."); and Brand v. Florida Power Corp. , 633 So. 2d

504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant

satisfies its burden of production showing legitimate,

nondiscriminatory reasons for the action taken is immaterial

insofar as the ultimate burden of persuasion is concerned, which

remains with the plaintiff.").

41. Where the administrative law judge does not halt the

proceedings "for lack of a prima facie case and the action has

been fully tried, it is no longer relevant whether the

[complainant] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . . [W]hether or not [the

complainant] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green

v. School Board of Hillsborough County , 25 F.3d 974, 978 (11th

Cir. 1994)(citation omitted); see also Aikens , 460 U.S. at 713-

715 ("Because this case was fully tried on the merits, it is

surprising to find the parties and the Court of Appeals still

addressing the question whether Aikens made out a prima facie

case. We think that by framing the issue in these terms, they

have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W]hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejection

[as a candidate for promotion], the factfinder must then decide

whether the rejection was discriminatory within the meaning of

Title VII. At this stage, the McDonnell-Burdine presumption

'drops from the case,' and 'the factual inquiry proceeds to a

new level of specificity.' After Aikens presented his evidence

to the District Court in this case, the Postal Service's

witnesses testified that he was not promoted because he had

turned down several lateral transfers that would have broadened

his Postal Service experience. The District Court was then in a

position to decide the ultimate factual issue in the case. . . .

Where the defendant has done everything that would be required

of him if the plaintiff had properly made out a prima facie

case, whether the plaintiff really did so is no longer relevant.

The district court has before it all the evidence it needs to

decide whether 'the defendant intentionally discriminated

against the plaintiff.'")(citation omitted); Beaver v. Rayonier,

Inc. , 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter,

Rayonier argues it is entitled to judgment as a matter of law

because Beaver failed to establish a prima facie case. That

argument, however, comes too late. Because Rayonier failed to

persuade the district court to dismiss the action for lack of a

prima facie case and proceeded to put on evidence of a non-

discriminatory reason--i.e., an economically induced RIF--for

terminating Beaver, Rayonier's attempt to persuade us to revisit

whether Beaver established a prima facie case is foreclosed by

binding precedent."); and Carmichael v. Birmingham Saw Works ,

738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed

his attack on the trial court's findings largely in terms of

whether the plaintiff made out a prima facie case of

discrimination. We are mindful, however, of the Supreme Court's

admonition that when a disparate treatment case is fully tried,

as this one was, both the trial and the appellate courts should

proceed directly to the 'ultimate question' in the case:

'whether the defendant intentionally discriminated against the

plaintiff.'").

42. The instant case was "fully tried," with Petitioner

and Respondent having both presented evidence.

43. A review of the evidentiary record reveals no proof of

prohibited intentional discrimination in the form of retaliation

on Respondent's part. 5 Indeed, although not required to do so,

Respondent affirmatively established through its evidentiary

presentation that, in not hiring Petitioner, it was motivated by

legitimate business considerations, not by a desire to retaliate

against Petitioner for having filed an EEOC employment

discrimination complaint against his previous employer, ITT. 6

44. In light of the foregoing, Respondent's employment

discrimination complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the FCHR issue a final order finding

Respondent not guilty of any unlawful employment practice alleged

by Petitioner and dismissing Petitioner's employment

discrimination complaint.

DONE AND ENTERED this 14th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of May, 2009.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2008).

2 Mr. Kaprocki did not need any more information about

Petitioner to make a hiring/rejection recommendation. He had

already decided that Petitioner would not be a "good fit for the

position" and, based on this determination, had recommended

against hiring Petitioner.

3 The FCHR, however, has no authority to award monetary relief

for non-quantifiable damages. See City of Miami v. Wellman , 976

So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on-quantifiable

damages . . . are uniquely within the jurisdiction of the

courts."); and Simmons v. Inverness Inn , No. 93-2349, 1993 Fla.

Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27,

1993)(Recommended Order)("In this case, petitioner does not

claim that she suffered quantifiable damages, that is, damages

arising from being terminated from employment, or from being

denied a promotion or higher compensation because of her race.

Rather, through argument of counsel she contends that she

suffered pain, embarrassment, humiliation, and the like (non-

quantifiable damages) because of racial slurs and epit[he]ts

made by respondents. Assuming such conduct occurred, however,

it is well-settled in Florida law that an administrative agency

(as opposed to a court) has no authority to award money damages.

See , e. g. , Southern Bell Telephone & Telegraph Co. v. Mobile

America Corporation, Inc. , 291 So. 2d 199 (Fla. 1974); State,

Dept. of General Services v. Biltmore Construction Co. , 413 So.

2d 803 (Fla. 1st DCA 1982); Laborers International Union of

N.A., Local 478 v. Burroughs , 541 So. 2d 1160 (Fla. 1989). This

being so, it is concluded that the Commission cannot grant the

requested relief, compensatory damages.").

4 " To 'articulate' does not mean 'to express in argument.'"

Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th

Cir. 1990). "It means to produce evidence." Id. ; see also

Mont-Ros v. City of West Miami , 111 F. Supp. 2d 1338, 1349 (S.D.

Fla. 2000)("This burden is merely one of production, not

persuasion, and is exceedingly light.").

5 Petitioner's mere subjective belief that he was unlawfully

retaliated against by Respondent, however sincere that belief

may be, does not constitute proof that there actually was such

retaliation. See Adair v. Charter County of Wayne , 452 F.3d

482, 491 (6th Cir. 2006)("Subjective beliefs, without

affirmative evidence, are insufficient to establish a claim of

retaliation."); Little v. Republic Refining Co., Ltd. , 924 F.2d

93, 96 (5th Cir. 1991)("Little points to his own subjective

belief that age motivated Boyd. An age discrimination

plaintiff's own good faith belief that his age motivated his

employer's action is of little value."); Elliott v. Group

Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir.

1983)("We are not prepared to hold that a subjective belief of

discrimination, however genuine, can be the basis of judicial

relief."); and Bowers v. City of Galveston , No. G-06-409, 2009

U.S. Dist. LEXIS 15439 *22 (S.D. Tex. Feb. 26, 2009)("Although

Bowers believes this action was taken in retaliation for

allegedly speaking out on issues of compliance with Department

of Transportation laws, she offers no facts to support her

conclusory allegations. Bowers subjective belief that she was a

victim of retaliation is insufficient to support the claim.").

6 Section 760.10, Florida Statutes (specifically, Subsection

(1)(a) thereof) also "makes it an unlawful employment practice

for 'an employer' to discriminate . . . against an individual

because of such individual's handicap . . . ." Klonis v.

Department of Revenue , 766 So. 2d 1186, 1190 (Fla. 1st DCA

2000). Petitioner did not allege in his June 23, 2008,

Complaint that he was a victim of such discrimination at the

hands of Respondent, but he did make such an allegation in the

Petition for Relief he subsequently filed with the FCHR. Even

assuming that this belated allegation of handicap discrimination

made in Petitioner's Petition (but not in his Complaint) could

be considered in this proceeding, there is no evidentiary basis

upon which to find that Respondent committed such an unlawful

employment practice. See , e.g. , Porter v. Department of

Agriculture and Consumer Services , No. 07-1334, 2007 Fla. Div.

Adm. Hear. LEXIS 509 *26-27 (Fla. DOAH September 13,

2007)(Recommended Order)("A prospective employee cannot be

discriminated against on the basis of his or her disability

unless the prospective employer knows of the disability. As

stated in Hedberg v. Indiana Bell Telephone Co., Inc. , 47 F.3d

928, 932 (7th Cir. 1995), 'At the most basic level, it is

intuitively clear when viewing the [Act's] language in a

straight forward manner that an employer cannot [take adverse

action against] an employee because of a handicap unless it

knows of the [handicap]. If it does not know of the [handicap],

the employer is [taking adverse action against] the employee

because of some other reason.' . . . Absent that knowledge,

Respondent's decision not to hire Petitioner must have been

'because of some other reason,' not because of a disability of

Petitioner.").

COPIES FURNISHED:

Alan Mollick

204 Salem Drive

Pennsville, New Jersey 08070

Andrew J. Marchese, Esquire

Marshall Dennehey Warner Coleman

and Googin, P.C.

One East Broward Boulevard, Suite 500

Fort Lauderdale, Florida 33130

Larry Kranert, 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

Tallahassee, Florida 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 the final order in this case.