10-000955 Zina Y. Johnson vs. Workforce Escarosa, Inc. Status: Closed Recommended Order on Friday, January 28, 2011.

Summary: Petitioner did not establish race discrimination, hostile work environment, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZINA Y. JOHNSON , )

)

Petitioner, )

)

vs. ) Case No. 10 - 0955

)

WORKFORCE ESCAROSA , INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pur suant to notice, on November 16 and

17 , 20 10 , in Pensacol a , Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Zina Y. Johnson , p ro s e

1365 A Pinnacle Drive

Pensacol a, F lorida 3 250 4

For Respondent: Erick M . Drlicka , Esquire

Emmanuel, Sheppard & Condon

3 0 South Spring Street

Pensacol a, Florida 3 2501

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Complaint of Discrimination

filed by Petitioner on June 1 8 , 200 9 .

PRELIMIN ARY STATEMENT

On June 1 8 , 200 9 , Petitioner, Zina Y . Johnson , filed a n

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that

Workforce Escarosa violated s ection 760.10, Florida Statutes, by

discrimin ating against h er on the basis of race and retaliation ,

which result ed in her termination . The Employment Complaint of

Discrimination alleged that Petitioner was unfairly disciplined

and harassed on the job; and that when s he complained about her

concerns , s he was terminated.

The allegations were investigated , and on Decem ber 9 , 200 9 ,

FCHR issued its D etermination : C ause. A Petition f or Relief was

filed by Petitioner on January 11, 2010 .

FCHR transmitted the case to the Division of Administrative

Heari ngs on or about February 23 , 20 10 . A Notice of Hearing was

issued setting the case for formal hearing on June 16 and 17 ,

20 10 . The hearing date was continued three times for good cause

and was ultimately heard on November 16 and 17, 2010.

At hear ing, Pet itioner testified on her own behalf.

Petitioner did not present any documents into evidence .

Respondent presented the testimony of Maggie Thomas , Julia

Lockhart , Susan Nelms, Julie Vick, and Holley McCloud .

Respondent Ós Exhibits 1 through 5 were admitte d into evidence.

A two - volume Transcript was filed on December 15, 2010 .

The parties timely filed Proposed Recommended Order s , which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - Ameri can fe male who was

employed by Respondent from J une 16, 200 8 , until h er termination

on December 1 0 , 200 8 . Prior to that, Petitioner worked for the

W elfare T ransition P rogram which was taken over by Respondent .

When she began her employment with Responden t, she was hired to

be a customer service representative wherein she continued doing

essentially the same job she was doing before Respondent took

over.

2. Respondent, Workforce Escarosa , Inc. ( Workforce ) , is an

employer within the meaning of the Florid a Civil Rights Act.

Workforce is one of 24 local workforce investment boards in

Florida and is responsible for Escambia and Santa Rosa Counties .

Workforce oversees federal employment and training programs

including the Workforce Investment Act, Welfare T ransition

Program, Disabled Veterans Program, Wagner Peyser Program, and

other federal programs. Part of Workforce's responsibility is

to train people for new jobs and careers, and to assist the m in

attaining economic self - sufficiency through employment.

3. Maggie Thomas is the Assistant Director of Workforce's

Welfare T ransition Program and was Petitioner's supervisor .

Ms. Thomas hired Petitioner in June 2008 to be part of the "Core

Team." The Core Team consisted of four persons: Julie Vick,

Tesh a Stallworth, Julia Lockhart, and Petitioner.

4. The Core Team provided administrative support and w as

responsible for front desk operations. Often, 70 or 80 people

were in the waiting area near the front desk.

5. In July 2008, Ms. Thomas counsel ed Petitioner following

an incident that occurred when Ms. Thomas and Ms. Thomas'

administrative assistant, Julie Vick, offered assistance to

Petitioner regarding an overhead projector and screen.

Ms. Thomas described Petitioner's response as "a real rude

rebuff." Ms. Thomas also learned that there was tensi on between

Petitioner and Ms. Vi ck . Ms. Thomas brought both Petitioner and

Ms. Vick into her office emphasizing that staff needed to get

along and that " staff should not treat staff in that abrupt rud e

manner."

6. Later in July 2008, Ms. Thomas was approached by a

career advisor who complained about Petitioner's demeanor with

customers and staff. Ms. Thomas again counseled Petitioner

regarding the importance of getting along with fellow staff

membe rs and treating customers with respect.

7. Ms. Thomas counseled Petitioner on a third occasion

after receiving complaints from a nother career advisor , Tarae

Donaldson, who is African - American. Ms. Donaldson requested

that she not have to work with Peti tioner on a project because

of Petitioner's attitude and demeanor. Ms. Thomas counseled

Petitioner that Petitioner's attitude and demeanor in the

workplace was affecting office morale, reminded Petitioner that

this was the third time that Ms. Thomas had t o counsel her about

this, and advised Petitioner that she needed to take this matter

seriously.

8. In early November 2008, Petitioner had a confrontation

with a co - worker, Julia Lockhart , who is white . Petitioner and

Ms. Lockhart were co - workers and frie nds , who socialized after

work and "hung out" together . That day, Ms. Lockhart was

responsible for the front counter . A workforce client, Katrina

Harmon, was working the front counter as part of the Community

Work Experience Program (CWEP). Ms. Lockhart counseled

Ms. Harmon about using "Mr.", "Mrs.", or "Ms." w hen addressing

the Workforce clients rather than just c alling out their last

names. Ms. Lockhart described Ms. Harmon's actions toward the

clients as unprofessional and that it "kind of reminded m e of a

drill sergeant." Ms . Harmon , who is African - American, later

complained to Petitioner about Lockhart 's coun seling her.

Petitioner and Ms. Lockhart then discussed the situation.

9. Petitioner believes that Ms. Lockhart was upset with

Ms. Johnson fo r siding with Ms. Harmon because Ms. Harmon is

African - American. However, Petitioner acknowledged that this

was her opinion based on her personal perception. Moreover,

even if Ms. Lockhart was upset with Ms. Johnson, being upset

with a co - worker does not establish racial discrimination.

10 . I n early December 2008, another staff member, Tesha

Stallworth, approached Ms. Thomas complaining about Petitioner's

demeanor. Ms. Thomas learned more about the incident involving

Ms. Harmon during this meeting with Ms. Stallworth. Ms. Thomas

decided to transfer Ms. Harmon from the front desk to the

Internet Café. About three weeks later, Ms. Thomas was called

by Ms. Stallworth. During this call, Ms. Thomas learned that

Ms. Stallworth threatened to quit because of Petitioner. During

this three - week period, Ms. Thomas also heard complaints

regarding Petitioner's office demeanor from Ms. Lockhart.

Ms. Thomas considers Ms. Stallworth and Ms . Lockhart to be "very

reliable employees."

11 . Ms. Thomas decided to hav e another counseling session

with Petitioner. The fourth counseling sessio n took place on

December 8, 2008 . Ms. Thomas felt that Petitioner's job was in

jeopardy but wanted to give Petitioner one more chance.

Additionally, Ms. Thomas found Petitioner's job performance to

be otherwise good. Ms. Thomas described Petitioner as very

defensive and that she did not take responsibility for any of

her actions. Ms. Thomas presented Petitioner with a memorandum

entitled, "Counseling on Unprofessional Behavior an d Disrespect

of other employees." Petitioner refused to sign the counseling

memorandum.

12 . Following that meeting, Ms. Thomas went to Susan

Nelms, Executive Director of Workforce. Ms. Thomas conveyed to

Ms. Nelms her concerns , that she did not hold out any hope that

the situation would be resolved, and that Petitioner was

affecting morale. Ms. Nelms made the decision to terminate

Petitioner. Ms. Thomas did not convey anything to Ms. Nelms

that would indicate that there were any racial issues

surroundi ng Petitioner's termination from employment.

13 . Ms. Thomas then went to Landrum to get advice on how

to proceed. Ms. Thomas again met with Petitioner on

December 10, 2008 , and told her that her e mployment would be

terminated. Ms. Thomas relates the fol lowing about the

December 10 meeting :

Q: And that's when the decision was made by

Ms. Nelms to terminate Ms. Johnson?

A: Yes.

Q: And then was that then conveyed to

Ms. Johnson?

A: No. After D ecember 8th, after Susan

[Nelms] gave me the go ahead, I wanted a day

to go to L andrum to make sure that I would

do this in the proper manner.

Q: So you got advice from Landrum?

A: I did get advice from Landrum.

Q: And then after that, did you meet with

Ms. Johnson?

A: I met with Ms . Johnson on December 10 th.

Q: All right. And conveyed that her

position would be terminated ?

A: That is correct. And it is at that

time, I'm positive about this, that she

first brought up that it was a black/white

issue against her. After she knew that she

was being te rminated and the reason I know --

I am absolutely positive about this, is

because the day before when I visited

Landrum, we were sitting there talking about

the proper procedure and I remember asking --

I said, you know, what if she brings up that

she thinks t his is a black/white issue? I

said, you know , how do I respond to that? I

mean, she hasn't up to this point, but I

asked and they just said, you should just

say you don't want to go there.

So after I handed her the termination, and

she brought up that s he thought it was a

black and white issue against herself,

that's when I said, I don't want to go

there, because that's what I had been

advised to say.

Now, her memory on December 8th might have

been that she brought up the black/white

issue about Katrina [Harmon], but it was not

about herself. I'm absolutely positive on

that point.

1 4 . Ms. Thomas' testimony in that regard was credible and

is accepted. That is, that Petitioner first mentioned to

Ms. Thomas that the Lockhart/Harmon was a racial iss ue, somehow

related to her, on December 10, 2008.

15. On December 16, 2008, Petitioner wrote Ms. Nelms

regarding her termination. The letter does not contain any

allegation of race discrimination or that her termination was in

retaliation for reporting r ace discrimination.

16 . On December 29, 2008, Petitioner spoke with Holly

McLeod, a human resource manager with Landrum Professional

Employer Service (Landrum). Petitioner did not complain to

Ms. McLeod about any race discrimination or allege that her

termination was in retaliation for complaining about race

discrimination.

17 . On or about January 8, 2009, Petitioner filed a

complaint with the Escambia - Pensacola Human Relations Commission

concerning her termination from Workforce. The letter of

compl aint does not allege race discrimination or retaliation.

Instead, the letter alleges that she was involved in a

disagreement with a co - worker; that she became a victim on a

"malicious vendetta" by this co - worker; that this c o - worker

manipulated and influe nced another co - worker and their

supervisor; and that the circumstances surrounding her

termination were "irrational, irresponsible, and deceitful."

At the time that letter was written, Petitioner believed that

Ms. Thomas made the decision to fire her.

18. Petitioner alleged in her Employment Complaint of

Discrimination that she "became the subject of racial jokes and

harassment by a co - worker, Ms. Julia Lockhart (white)."

Petitioner's allegations in this regard are not precise in that

she initially re ferenced four occasions of racial jokes but then

characterized that as a "guesstimation." I n her Proposed

Recommended Order, Petitioner asserts that the numb er and

frequency of the jokes are not known.

19. There is testimony regarding the content o f only one

joke. Ms. Lockhart acknowledges that on one occasion, she told

a joke when she and Ms. Johnson were outside smoking a cigarette

together. Petitioner pointed out a black woman to Ms. Lockhart

and commented that the woman had the biggest lips sh e had ever

seen . In response, Ms. Lockhart then told a joke regarding

African - Americans. 1 / Petitioner laughed at the joke and did not

indicate that she was offended.

20. In response to a question as to whether she found the

alleged jokes to be offensive , Petitioner replied, "I don't even

remember what the jokes were, so how can I tell you if that they

were offensive or not." Petitioner is not certain as to whether

Ms. Lockhart meant to be offensive. The preponderance of the

evidence suggests that Petit ioner only stopped socializing with

Ms. Lockhart after the incident involving Ms. Harmon, not

because of any joke(s).

21. Workforce has an open door poli cy for reporting

discrimination. Petitioner received a copy of this policy, but

did not complain to Workforce or Landrum about Ms. Lockhart's

joke(s).

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the parties and s ubject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (2010).

23 . Section 760.10(1) and (7) , Florida Statutes (2009) , 2 /

state s that it is an unlawful employment practice for an

employer to discharge or otherwise discriminate against an

individual on the basis of race , or to discriminate against a

person who has made a charge of an unlawful employment practice .

24. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround N .

Am . , LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Brand v. Fl a . Power

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

25 . In her Employment C omplaint of D iscrimination,

Petitioner alleged that she was unfairly discipline d and

harassed because of her race ; was discharged in retaliatio n for

complaining about the discriminatory practices; and became the

subject of racial jokes and harassment by a co - worker.

26. Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfeld v. Babbitt ,

1 68 F. 3d 1257, 1266 (11th Cir. 1999). Direct evidence of

discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without interference or presumption. Maynard v. Bd. of Regents ,

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

27. "Racially derogatory statements can constitute direct

evidence of discrimination if the comments were (1) made by the

decisionmaker responsible for the alleged discrimination and (2)

made in the context of the challenged decision. H owever, if an

alleged statement fails either prong it is conside red a 'stray

remark' and does not constitute direct evidence of

discr imination." Vickers v. Fed. Express Corp. , 132 F. Supp. 2d

1371 (S.D. Fla. 2000), citing Wheatley v. Baptist Hosp . of

Miam i , 16 F. Supp. 2d 1356, 1359 - 60, aff'd 172 F.3d 882 (11th

Cir. 1999).

28. "For statements of discriminatory intent to constitute

direct evidence of discrimination, they must be made by a person

involved in the challenged decision." Wheatley , supra at 136 0,

quoting Trott er v. Bd. of Tr. of Univ. of Ala . , 91 F.3d 1449,

1453 - 54 (11th Cir. 1996).

29. Ms. Lockhart told the racially insensitive joke to

Petitioner. While Ms. Lockhart was one of the staff members who

spoke to Ms. Thomas about Petitioner's offi ce behavior,

Ms. Lockhart was a co - worker of Petitioner and not a decision

maker. Ms. Nelms was the decision - maker and there is no

evidence that she, or Ms. Thomas , who made the recommendation to

Ms. Nelms, was aware that a racially insensitive joke took

place. Thus, it is concluded that Ms. Lockhart's joke was a

"stray remark" and that Petitioner has not presented direct

evidence of racial discrimination. See Vickers v. Fed. Express

Corp. , supra .

30 . Having failed to produce direct evidence of racial

discrimination, P etitioner may attempt to establish her case

through inferential and circumstantial proof. Kline v. Tenn.

Valley Auth. , 128 F. 3d 337, 348 (6th Cir. 1997). Petitioner

bears the burden of proof established by the United States

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

(1973), and Texas Dep ' t of Cmty . Affairs v. Burdine , 450 U. S.

248 (1981). Under this well - established model of proof, the

complainant bears the initial burden of establishing a prima

facie case of discriminatio n. When the charging party, i.e. ,

Petitioner, is able to make out a prima facie case, the burden

to go forward shifts to the employer to articulate a legitimate,

non - discriminatory explanation for the employment action.

See Dep ' t of Corr . v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA

1991) (court discusses shifting burdens of proof in

discrimination cases). The employer has the burden of

production, not persuasion, and need only persuade the finder of

fact that the decision was non - discriminatory. Id. Alexander

v. Fulton Cnty . , G a. , 207 F.3d 1303 (11th Cir. 2000). The

employee must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. Schoenfeld v. Babbitt , supra at

1267. " The employee must satisfy this burden by showing

directly that a discriminatory reason more likely than not

motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief." Dep ' t . of Corr . v. Cha ndler , supra at 1186; Alexander

v. Fulton Cnty . , G a. , supra . Petitioner has not met this

burden.

31. "Although the intermediate burdens of production shift

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

fact that the employer intentional ly discriminated against the

[Petitioner] remains at all times with the [Petitioner]." EEOC

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

2002); see also Byrd v. RT 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.")

32 . To establish a prima facie case of race

discrimination , Petitioner must prove that (1) s he is a member

of a protected c lass (e.g., African - American); (2) s he was

subject to an adverse employment action; (3) h er employer

treated similarly situated employees, who are not members of the

protected class, more favorably; and (4) s he was qualified for

the job or benefit at issue. See McDon nell , supra ; Gillis v.

G a . Dep ' t of Corr. , 400 F. 3d 883 (11th Cir. 2005).

33 . Petitioner has met the first and second elements to

establish a prima facie case of discrimination in that s he is a

member of a protected class and was subject to an adverse

employment action.

3 4 . However, s he has not proven the third element, that

h er employer treated similarly situated employees who are not

members of the protected class more favorably. No evidence was

presented to establish that other employees had been counseled

repeatedly for the same conduct and were then treated

differently. See McCann v. Tillman , 526 F.3d 1370, 1373 (11th

Cir. 2008) ("In order to determine whether other employees were

similarly situated to [Petitioner], we evaluate 'whether the

employees are involved in or accused of the same or similar

conduct and are disciplined in different ways.' (citation

omitted)".

35 . As for the fo u rth element, the preponderance of the

evidence establishes that Petitioner was qualified for the job.

Ms. Thomas testified that she was satisfied with Petitioner's

job performance, and that she recommended that Petitioner be

terminated only because of her behavior and demeanor in the

workplace.

3 6 . Applying the McDonnell analysis, Petitioner did not

meet h er burden of establishing a prima facie case of

discriminatory treatment. Even assuming that Petitioner had

demonstrated a prima facie case of discriminatory conduct,

Respondent demonstrated a legitimate, non - discriminatory reason

for PetitionerÓs termination . That is, Petitioner w as fired

because of inappropriate behavior toward co - workers and in the

presence of customers.

3 7 . Even if it were necessary to go to the next level of

the McDon nel l analysis, Petitioner did not produce any evidence

that RespondentÓs legitimate reasons w ere pretext for

discrimination. Therefore, Petitioner has not met h er burden of

showing that a discriminatory reason more likely than not

motivated the actions of Respondent toward Petitioner or by

showing that the proffered reason for the employment deci sion is

not worthy of belief. Dep't of Corr. v . Chandler , supra ,

Alexander v. Fulton Cnty., G a. , supra . "Would the proffered

evidence allow a reasonable factfinder to conclude that the

articulated reason for the decision was not the real one."

Walker v. Prudential , 286 F. 3d 1270 (11th Cir. 2002).

Consequently, Petitioner has not met h er burden of showing

pretext.

3 8 . In summary, Petitioner has failed to carry h er burden

of proof that Respondent engaged in racial discrimination toward

Petitioner whe n it terminat ed h er .

39. In her Employment Complaint of Discrimination,

Petitioner alleges that she became the subject of racial jokes

and harassment by a white co - worker, Ms. Lockhart. There is no

evidence that Petitioner was the subject of the only jok e about

which evidence was introduced. The joke told by a co - worker,

Ms. Lockhart, which constitutes a stray remark under the above

case analysis, does not establish that she was subject to a

hostile work environment. Without restating the above analysis

and discussion regarding race discrimination, the joke(s) told

by Ms. Lockhart, a co - worker, w ere not sufficiently severe or

pervasive to alter the terms and conditions of employment. See

Thompson v. Carrier Corp. , 2009 U.S. App. LEXIS 28245 (11th Cir.

2 009) ci ting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21

(2002) ( " A hostile work environment is one 'permeated with

discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the

victim's employm ent and create an abusive working

environment.' " )

40 . Petitioner also alleged that she was discharged in

retaliation for complaining about discriminatory practices. To

make a prima facie case of retaliation, Petitioner must show

that s he engaged in prote cted activity, that s he suffered

adverse employment action, and that there is some causal

relation between the protected activity and the adverse

employment action. Casiano v. Gonzales , 2006 U.S. Dist. Lexis

3593 (N.D. Fla. 2006); Jeronimus v. Polk Cnty . Opportunity

Council, Inc. , 2005 U.S. App. Lexis 17016 (11th Cir. 2005) .

4 1 . Ms. Thom a s' testimony that Petitioner fir st told her

about the Lockhart/H armon incident on December 10, 2008 , was

accepted as credible. Further, that incident involved persons

ot her than Petitioner. That is, even if Petition er had

complained to Ms. Thomas about the Lockhart/Harmon incident on

December 8, 2008, Ms. Lockhart's instructions to Ms. Harmon did

not directly have anything to do with Petitioner . The perceived

connection to Petitioner was simply as to who was taking whose

side in what amounted to an office spat. In any event, the

decision to terminate Petitioner was made prior to the

December 10, 2008 , meeting between Ms. Thomas and Petitioner.

42 . Therefore, it is c oncluded that Petitioner did not

engage in a protected activity to substantiate a claim of

illegal retaliation. And, there was no causal connection

between Petitioner's informing Ms. Thomas that she believed that

incident involving Ms. Lockhart was a blac k/white issue and

Petitioner's termination. Ms. Thomas' decision to terminate

Petitioner was made after four counseling sessions with

Petitioner, after receiving complaints from several employees,

including an African - American. The decision to terminate

Petitioner had nothing to do with race , but was rather based on

a series of issues regarding Petitioner's office demeanor.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That th e Florida Commission on Human Relations enter a

final order dismissing the Employment Charge of Discrimination

and Petition for Relief.

DONE AND ENTERED this 28 th day of J anuary , 20 11 , in

Tallahassee, Leon County, Florida.

S

_______________________ ____________

BARBARA J. STAROS

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

Filed w ith the Clerk of the

Division of Administrative Hearings

this 28 th day of J anuary , 20 11 .

ENDNOTES

1/ The joke as related by Ms. Lockhart: "Hey, do you know why

black people don't drive convertibles? And she said, No, why?

And I said, because their l ips are big and they flap in the wind

and they can't see."

2/ All future references to Florida Statutes will be to 2009.

COPIES FURNISHED :

Zina Y . Johnson

1365 A Pinnacle Drive

Pensaco la, F lorida 3 2504

Erick M. Drlicka , Esquire

Emmanuel, Sheppard & Condon

3 0 South Spring Street

Pensaco la, F lorida 3 2501

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 sub mit 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.