09-002551 Maurice Allen vs. Gold`s Gym Status: Closed Recommended Order on Monday, December 14, 2009.

Summary: Petitioner did not demonstrate that his termination from employment was based upon race discrimination or that racial slurs created a hostile work envionrment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICE ALLEN, )

)

Petitioner, )

)

vs. ) Case No. 09-2551

)

GOLD'S GYM, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 23, 2009, a hearing was held in Tallahassee,

Florida, before Administrative Law Judge Lisa Shearer Nelson,

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carolyn D. Cummings, Esquire

Cummings & Hobbs, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

For Respondent: Deborah Stephens Minnis, Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent has

committed an unlawful employment practice in violation of Chapter

760, Florida Statutes (2007), and if so, what remedy should be

ordered?

PRELIMINARY STATEMENT

On October 8, 2008, Petitioner filed a complaint of

discrimination with the Florida Commission on Human Relations

(FCHR), alleging that Respondent, Gold's Gym, had discriminated

against him because of his race. On April 2, 2009, FCHR issued a

Determination: No Cause and a Notice of Determination: No

Cause. Petitioner filed his Petition for Relief May 7, 2009, and

on May 14, 2009, the case was forwarded to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was assigned originally to Administrative Law Judge

T. Kent Wetherell, II, who on May 26, 2009, issued a Notice of

Hearing scheduling the matter for July 27, 2009. On July 22,

2009, Respondent filed an Uncontested Motion for Continuance,

which was granted by Order dated that same day. The matter was

rescheduled for hearing September 23, 2009, and proceeded as

scheduled.

In September 2009, T. Kent Wetherell, II, was appointed to

the First District Court of Appeal, and this case was transferred

to the undersigned before hearing. At the hearing, Petitioner

presented the testimony of Maurice Allen and Petitioner's

Exhibits 1-4 were admitted into evidence. Respondent presented

the testimony of Annette Garrett, Donna Berryman, Jared Duncan,

James Burgin and Jimmy Burtoft, and Respondent's Exhibits 1-7

were admitted. Anton Ackerman and Maurice Allen presented

rebuttal testimony for Petitioner.

The two-volume Transcript of the proceedings was filed

October 19, 2009. At Petitioner's request, the time for

submitting proposed recommended orders was extended to

November 10, 2009. Respondent filed its Proposed Recommended

Order November 2, 2009, and Petitioner filed his Proposed

Recommended Order November 12, 2009. Both submissions have been

carefully considered in the preparation of this Recommended

Order. Unless otherwise indicated, all references to Florida

Statutes are to the 2007 codification of the Florida Statutes.

FINDINGS OF FACT

1. Petitioner, Maurice Allen (Allen), is an African-

American male who was employed by Respondent, Gold's Gym (Gold's)

as a personal trainer from October 2005 to October 22, 2007.

Allen is also currently a senior at Florida A&M University,

majoring in biochemistry and business.

2. Respondent is a personal fitness gym with three

locations or "clubs" and one affiliate club in the Tallahassee

area. The three clubs are Apalachee Parkway (the Downtown Club),

Capital Circle Northeast (North Club), and Pensacola Street, with

the affiliate club, Women's World, on Thomasville Road. Gold's

is an employer under the Florida Civil Rights Act, Chapter 760,

Florida Statutes.

3. Allen was hired by Gold's as a personal trainer, whose

primary duties were to perform personal fitness assessments with

body fat measurements and blood pressure readings, for club

members; to assist members in establishing fitness goals; and to

assist in workout sessions with the members for the achievement

of these goals.

4. The parties did not dispute that Allen was qualified to

perform these duties, and was one of the highest producing

trainers on Gold's staff.

5. Gold's has a discrimination and harassment policy

applicable to all of its locations. The policy, which has been

in effect during the entirety of the period relevant to this

proceeding, is provided to every employee at the time of

employment. The policy is also included in Gold's employee

handbook, a copy of which is kept at each facility.

6. The discrimination and harassment policy provides that

an employee with a complaint of harassment or discrimination must

bring it to the attention of his or her supervisor, the owner,

Jim Burtoft, and Donna Berryman, the human resources director.

The policy also directs that all complaints should be in writing.

Allen signed acknowledgment forms, attesting to having received

the discrimination and harassment policy.

7. Allen was initially assigned to the Downtown Club and

later reassigned to the North Club. Allen's immediate supervisor

was Tim Kane, the North Club Athletic Director. Kane's immediate

supervisor was Jarred Duncan, the General Manager, who reported

directly to Jim Burtoft, the owner. Kane, Duncan, and Burtoft

are all white.

8. Allen's Petition for Relief deals with three basic

allegations: 1) that there was a hostile work environment,

including racial slurs by other trainers and supervisors, and an

uneven distribution of walk-in clients based upon the race of

both the trainers and the clients; 2) that he was terminated

based upon his race, when the white male involved in an

altercation immediately following Allen's termination was not

fired; and 3) that he was retaliated against for speaking out

about the disparate assignment of clients. Only the first two

assertions were contained in the complaint that was investigated

by the Commission.

9. Allen complains that his direct supervisor, Timothy

Kane, and James Burgin, the athletic director of the Downtown

Club, made what he considered to be racist remarks. For example,

Kane told him, "you look like a person who will wear a long

chain" (which Allen interpreted as referring to a rapper), and

Duncan referred to Allen and another African-American trainer on

one occasion as "the African Connection" and commented, "I know

how much you brothers like barbeque," when Gold's provided food

from "Famous Dave's" Barbeque one afternoon. He also complained

that Sally Burgin, another Gold's employee and James Burgin's

daughter, cursed and yelled at him on one occasion and was

deliberately rude to another African-American trainer on a

separate occasion.

10. After Mr. Kane's comments, Allen complained to Jarred

Duncan. There is no evidence that any further racist comments

were made about or to Allen by Kane. Allen told Duncan he was

offended by Duncan's comments, and after the barbeque comment,

attempted to call Mr. Burtoft about them. However, when he left

messages for Mr. Burtoft, he did not indicate in the message that

he was complaining about racial comments made by supervisors. He

simply stated that he wanted to talk to him about a "very

important matter." There was no evidence that Sally Burgin's

actions were motivated by racism as opposed to being simply rude.

Allen admitted that he never filed a written complaint with the

Human Resource Officer, as contemplated by Gold's policy.

11. Personal trainers received clients one of two ways:

either by assignment from Gold's management or by acquiring

clients on their own. Clients assigned by Gold's were assigned

based on when the client came in and when the trainers were

listed as being available. All clients were required to be

Gold's club members, and payment for personal training came

through Gold's.

12. Allen believed that he and other African-American

trainers were not receiving as many walk-in clients through

Gold's, and were receiving fewer white clients than their white

counterparts. However, no documentation was presented to support

this "feeling." Allen voiced his opinion on the matter during a

staff meeting, and was told by management that the assignment

procedure would be reviewed.

13. Allen also believed that he was treated differently in

terms of his use of the facilities. On one occasion, Allen was

working with a client at the Downtown Gold's location. After

finishing with his client and waiting for the next client to

arrive, he engaged in a personal workout. Allen began his

personal workout during the lunch hour, or a time considered to

be during "peak hours." Burgin saw him working out on the first

floor of the club and directed him to stop because staff was not

allowed to work out during peak hours.

14. At approximately the same time, a white Gold's

employee, Chris Stewart, was working out on the second level of

the club. Allen saw him and told Burgin that Stewart was working

out as well. Unbeknownst to Allen, Stewart received a written

reprimand for working out during peak hours. Allen received only

a verbal warning.

15. In the fall of 2007, Allen had a female client who did

not appear for all of her workouts. The most credible evidence

presented is that the problem at the heart of her "no shows" was

a scheduling problem, although there may also have been a

misunderstanding between the client and Allen about the

difference between pushing a client hard to perform and bullying.

Allen was out of the gym for a week, due to an illness in the

family, and during that time, the client was reassigned to

another trainer.

16. Gold's management indicated that the client asked to be

transferred because Allen was sexually harassing her. However,

this reason for the transfer was never explained to Allen, and

there is no documentation to support such an allegation.

Further, no notation was ever placed in Allen's file regarding

what could only be described as a serious complaint. The

assertion that Allen was engaging in sexual harassment and that

the client made such a complaint is not credible.

17. When Allen returned to work the week of October 15,

2007, he realized that he was not being paid for workouts

attributable to this female client. When he asked Kane about it,

he was told to check with Duncan. When he asked Duncan, he was

told to check with Kane.

18. On Wednesday, October 17, 2007, Allen was training a

young lady in the early hours of the morning. Allen passed by

Kane, who was training another client, and when he did, he asked

if he was going to get paid for the previous sessions. Kane

reacted negatively to the question, and became angry.

19. While both men were in the lobby area of the gym, an

altercation ensued between Kane and Allen, and the police were

called. While the police report chronicles widely differing

accounts of the event, those accounts are clearly hearsay and

none of the people interviewed testified in this proceeding

except Petitioner. The only competent evidence presented

indicates that Kane was clearly the aggressor, a conclusion that

is corroborated by the police report, and that during the

altercation, he told Allen that he was fired. Kane was

subsequently charged with assault and battery as a result of the

altercation. It is unclear what, if any, disciplinary action was

taken by Gold's against Kane. No charges were brought against

Allen.

20. After the police were called, Jim Burtoft arrived at

the gym. He did not witness the altercation between Kane and

Allen. He told Allen to go home for the rest of the week, and

they would talk later. Subsequently, Allen was told to attend a

meeting with Mr. Burtoft on Monday, October 22, 2007, which he

did.

21. The meeting consisted of Mr. Burtoft, Allen, and Donna

Berryman. At that time, Allen was advised that he was being

terminated from his position at Gold's. Allen was requested to

sign a personal action form, which stated:

After reviewing his employee file, Gold's Gym

management stands by Mr. Tim Kane's decision

to dismiss Mr. Allen. The termination is for

insubordination based on the facts contained

in Mr. Allen's personnel file and is no way

influenced by the incidents following his

dismissal by Mr. Kane (see attached sheets) .

(Emphasis supplied.)

22. Allen asked to be able to see his personnel file so

that he could understand the reason for his termination. He was

told that his file was not available.

23. There is no insubordination documented in Allen's

personnel file.

24. There are only two documents that could be considered

disciplinary actions included in the file. Personal action forms

used by Gold's Gym provide for a signature by the recipient, as

well as signatures by the manager and, if necessary, a witness.

The two disciplinary action forms in his file do not contain

Allen's signature, and he denies ever seeing either form before

being terminated. His testimony is credited.

25. The first form is dated May 8, 2007, and indicates that

it is a final warning for training a client out of uniform. The

form indicates that failure to follow procedure in the future

will result in termination. Under "remarks," the form indicates

that "employee refused to sign." As stated above, it is found

that Allen never saw this form. He does acknowledge, however,

that there were times when he trained "out of uniform" because he

sought and received permission to do so when, for example, he

took clients running off the premises. He was supposed to return

to uniform once he returned to the gym.

26. The second form is dated September 14, 2007, more than

a month before the altercation. The form indicates that it was

issued for using an unauthorized price sheet. While there is a

purported signature on the line for an employee's signature, it

does not bear any resemblance to the other signatures by Allen

contained in the file. Allen acknowledged that there was an

issue dealing with use of a proper price sheet, but did not

recall receiving any written disciplinary action.

27. Neither of these personal action forms mention anything

with regard to insubordination, and neither was generated near

the time of Allen's termination. Mr. Burtoft's statement that

the termination had nothing to do with the altercation with Kane

is not credible, and is rejected.

28. Also contained in Allen's personnel file at the time of

hearing is a lengthy memorandum purportedly dated December 29,

2006, that states at the top, "This attached Statement is a

documented part of the Personal Action Form Gold's Gym

Tallahassee, Florida, dated December 29, 2006 concerning Personal

Trainer, Maurice Allen." The document lists certain concerns

with Allen's performance, dealing with his appearance and

demeanor, interactions with co-workers, and issues regarding

paperwork for clients.

29. The December 29, 2006, memo is among the documents that

counsel for Gold's represented were added to Allen's personnel

file after his termination, as part of the FCHR investigation

into Allen's complaint of discrimination. There is nothing in

the memorandum that indicates Allen was ever provided a copy of

it. No explanation was given as to why such a significant memo

would be placed in Allen's file, not at the time it was

supposedly generated, but after an investigation related to his

termination was initiated. Nor was any reasonable explanation

given as to why there is nothing in the file immediately

following the purported generation of the memo, to indicate that

there was any sort of follow-up action. Whether or not the

December 29, 2006, memo was actually generated at that time, it

was not in Allen's personnel file at the time he was fired.

30. Mr. Burtoft indicated at hearing that Allen would be

eligible for rehire six months after his termination, and that he

either told him so or "never said he wasn't available for

rehire." There is nothing on the notice of his termination that

indicates Allen would be eligible for rehire.

31. Based upon the totality of the credible, admissible

evidence presented, Allen was not terminated based upon the

documentation in his file. He was terminated because of the

altercation with his supervisor, Timothy Kane, a long-time

employee at the gym who had known Mr. Burtoft for 15 years.

32. Subsequent to Allen's termination, Mr. Kane was

involved in another altercation with Ali Alawieh, an employee of

Gold's Gym, in the parking lot of the North location. This

employee was a personal trainer, like Allen, and was also Kane's

roommate. Alawieh, who is of a different ethnic background than

both Kane and Allen, was given the option of transferring to

another Gold's location. Allen was not given that option.

Gold's did not consider this incident to be employment related

because it occurred in the parking lot (which Gold's does not

own) as opposed to on the premises, and because of the personal

relationship between Kane and Alawieh. It is doubtful that

patrons of the gym observing the altercation would have

recognized or appreciated the difference. Kane's employment was

terminated subsequent to both incidents for reasons that appear

to be unrelated to either incident.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569, 120.57(1), and

760.11(6), Florida Statutes (2009).

34. Section 760.10, Florida Statutes, provides that it is

an unlawful employment practice for an employer

(1) (a) . . . [t]o discharge or to fail or

refuse to hire any individual, or otherwise

to discriminate against any individual with

respect to compensations, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

35. Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand vs.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994);

Florida Dept. of Community Affairs vs. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

36. As a preliminary matter, Allen's Petition for Relief

raises a claim of retaliation for speaking out against uneven

treatment in assigning new clients to personal trainers. This

claim was not included in his original complaint to the

Commission. Accordingly, it is beyond the scope of this

proceeding and will not be discussed further. Scholz v. RDV

Sports, Inc. , 710 So. 2d 618 (Fla. 5th DCA 1998). Even assuming

that the claim of retaliation was raised in the original

Complaint to the Commission, the facts presented do not support

the claim, inasmuch as no evidence was presented to establish a

time-frame between Allen's complaints and his termination.

Wrongful Termination Claim

37. As with most cases, Petitioner relies on circumstantial

evidence to establish his claims. The Supreme Court of the

United States established in McDonnell-Douglas Corp. v. Green ,

411 U.S. 792 (1973), and Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981), the analysis to be used in cases

alleging claims under Title VII and relying on circumstantial

evidence to establish discrimination. This analysis was

reiterated and refined in St. Mary’s Honor Center v. Hicks , 509

U.S. 502 (1993). See also Zappa v. Wal-Mart Stores, Inc. , 1 F.

Supp. 2d 1354, 1356 (M.D. Fla. 1998), and Standard v. A.B.E.L.

Svcs., Inc. , 161 F.2d 1318 (11th Cir. 1998).

38. Under McDonnell-Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for the action taken against Petitioner.

It is a burden of production, not persuasion. Once this non-

discriminatory reason is offered by Respondent, the burden then

shifts back to Petitioner to demonstrate that the offered reason

is merely a pretext for discrimination. As the Supreme Court

stated in Hicks , before finding discrimination, “[t]he fact

finder must believe the plaintiff’s explanation of intentional

discrimination.” Hicks , 509 U.S. at 519.

39. In Hicks , the Court stressed that even if the fact-

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id .

As stated in Thomas v. Nicholson , 263 Fed. Appx. 814, 816 (11th

Cir. 2008),

Thomas must demonstrate that the proffered

reason was not the true reason for the

employment decision either directly by

persuading the court that a discriminatory

reason more likely motivated the employer or

indirectly by showing that the employer's

proffered explanation is unworthy of

credence. Courts are not concerned with

whether an employment decision is prudent or

fair, but only with whether it was motivated

by unlawful animus. We have held that the

employer may fire an employee for a good

reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as

long as its action is not for a

discriminatory reason. (Citations and

internal quotation marks omitted).

40. In order to establish a prima facie case of

discrimination, Petitioner must demonstrate that:

a. Petitioner is a member of a protected

class;

b. Petitioner is qualified for the position;

c. Petitioner was subject to an adverse

employment decision; and,

d. Petitioner was treated less favorably

than similarly situated persons outside the

protected class.

Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia ,

684 F.2d 729 (11th Cir. 1982); Lee v. Russell County School

Board , 684 F.2d 769 (11th Cir. 1984); and Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir 1997).

41. Petitioner has demonstrated a prima facie case. He is

an African American, which is a protected class under Chapter

760, Florida Statutes. He was not only well qualified for his

job, he was a top producer for his employer. He suffered an

adverse employment action, in that his employment was terminated.

Finally, he was able to establish that he was treated less

favorably than similarly situated persons outside his protected

class. Both Tim Kane and Ali Alawieh, employees of different

races than Allen, were involved in altercations (Kane involved in

both) and were allowed, at least for the time being, to remain in

Gold's employ.

42. Respondent has argued that Allen and Kane were not

similarly situated, in that one was a supervisor and one was a

subordinate employee. In this instance, that distinction makes

no difference. There is no demonstration that supervisory

employees are or should be held to a different standard when it

comes to physical altercations with other employees. Moreover,

the same cannot be said of Alawieh. He was involved in a

physical altercation with the same supervisor and allowed to

transfer as opposed to being fired.

43. Because Petitioner has established a prima facie case

of discrimination, it is incumbent upon Respondent to produce a

legitimate, non-discriminatory reason for the action taken

against Petitioner. Here, Respondent asserts that Petitioner was

terminated based upon his disciplinary history.

44. Insubordination is a legitimate, non-discriminatory

basis for termination. However, Respondent's explanation

regarding Allen's disciplinary history is not credible. First,

there is no documentation in Allen's personnel file indicating

that he was ever disciplined for insubordination, the stated

reason for his termination. The two disciplinary notices

contained in the file, which are not signed by Petitioner, took

place five months and one month prior to his termination.

Respondent's claim that Allen's termination was not caused or

affected by the altercation with Tim Kane is rejected.

45. That being said, Petitioner is still required to

demonstrate that the motive for his termination was

discrimination based upon his race, and has not done so.

Instead, it appears that Gold's management made a conscious

choice that it would be unworkable to continue to employ both

Kane and Allen after the altercation on October 17, 2007. It

also made the choice to side with Tim Kane, a long-time employee

known to Jim Burtoft for 15 years, as opposed to siding with

Petitioner, a young employee of relatively short duration. The

decision might be wrong, unfair, and even bad management, but

there was no competent, persuasive evidence that Respondent's

decision had anything to do with Allen's race.

Hostile Work Environment

46. Petitioner also claims that he was subject to a hostile

work environment. To prove such a claim, Petitioner must

establish that the workplace "is permeated with discriminatory

intimidation, ridicule and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and

create an abusive working environment. Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 21 (1993). To establish a hostile

work environment claim, Petitioner must establish 1) that he or

she belongs to a protected class; 2) that he or she has been

subject to unwelcome harassment; 3) that the harassment was based

on a protected characteristic of the employee; 4) that the

harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and create a discriminatorily

abusive working environment; and 5) that the employer is

responsible for the environment, by either vicarious or direct

liability. Cooley v. Great Southern Wood Preserving , 138 Fed.

Appx. 149 (11th Cir. 2005), citing Miller v. Kenworth of Dothan,

Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002).

47. Whether harassing conduct was "sufficiently severe or

pervasive to alter the terms of conditions of his employment"

involves both an objective and a subjective component. Miller ,

277 F.3d at 1276 . The objective severity of harassment should be

judged from the perspective of a reasonable person in the

Petitioner's position, considering "all of the circumstances."

Mendoza , 195 F.3d at 1246 . In determining "objective severity,"

consideration is given to 1) the frequency of the conduct; 2) the

severity of the conduct; 3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and

4) whether the conduct unreasonably interferes with the

employee's job performance." Id.

48. Viewing the evidence in the light most favorable to

Petitioner, there were approximately four incidents where

inappropriate comments were made to or about Allen and/or one of

his African-American colleagues. With respect to at least one of

those incidents, i.e. , the rude behavior of Sally Burgin, there

is no evidence that the behavior had anything to do with race as

opposed to bad behavior. The other comments, while boorish and

offensive, stopped upon Allen's verbal complaint.

49. Indeed, applying the factors set forth in Mendoza ,

Petitioner did not assert that the offensive conduct was

physically threatening or humiliating, or that it interfered with

his job performance. Petitioner failed to show that any of the

alleged conduct, including the racial comments, was so "common"

or "severe" that it created an atmosphere charged with hostility.

See Faragher v. City of Boca Raton , 524 U.S. 775 (1998) (simple

teasing, offhand comments, and isolated incidents, unless

extremely serious, will not amount to discriminatory changes in

the terms and conditions of employment; these standards for

judging hostility are sufficiently demanding to ensure that Title

VII does not become a "general civility code"). Petitioner has

not proven the facts necessary for his hostile work environment

claim.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing Petitioner's

Petition for Relief in its entirety.

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

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2009.

COPIES FURNISHED:

Carolyn Davis Cummings, Esquire

Carolyn Davis Cummings, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

Deborah Stephens Minnis, Esquire

Ausley & McMullen, P.A.

Post Office Box 391

Tallahassee, Florida 32302

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

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.