11-002999 Jerry W. Bratcher vs. City Of High Springs Status: Closed Recommended Order on Wednesday, September 28, 2011.

Summary: Petitioner failed to demonstrate that his layoff or the subsequent filling of a similar position were based upon sex or age discrimination or that he suffered retaliation for his complaints of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY W. BRATCHER, )

)

Petitioner, )

vs. ) Case No. 11-2999

)

CITY OF HIGH SPRINGS, )

)

Respondent. )

)

)

RECOMMENDED ORDER

On August 18, 2011, a duly-noticed hearing was held in

Tallahassee and Gainesville, Florida, via video teleconference,

before F. Scott Boyd, an Administrative Law Judge assigned by

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry W. Bratcher, pro se

355 Southwest Tiffany Court

Fort White, Florida 32038

For Respondent: Timothy M. Warner, Esquire

Warner Law Firm, P.A.

519 Grace Avenue

Post Office Box 1820

Panama City, Florida 32402

Thomas DePeter, Esquire

23327 Northwest County Road 236, Suite 30

High Springs, Florida 32643

STATEMENT OF THE ISSUE

The issue is whether the Respondent committed an unlawful

employment practice under section 760.10, Florida Statutes

(2010), by discriminating against Petitioner on the basis of age

or sex, or by retaliating against Petitioner, and if so, what

remedy should be ordered.

PRELIMINARY STATEMENT

On December 13, 2010, Petitioner filed a complaint with the

Florida Human Relations Commission (Commission), alleging that

the City of High Springs (City) had discriminated against him

based upon his age or gender in three actions: laying him off

from his position; failing to recall him; and in giving his

position to a younger, less qualified man. As discussed below,

he also made some allegations of retaliation. On May 10, 2011,

the Commission issued a Notice of Determination of No Cause, and

on June 11, 2011, Petitioner filed a Petition for Relief. On

June 15, 2011, the matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was noticed for video teleconference hearing on

August 18, 2011, in Tallahassee and Gainesville, Florida,

locations. At hearing, Petitioner moved to exclude the

testimony of Respondent's witnesses, saying he had not received

a witness list in accordance with the Order of Pre-hearing

Instructions. Respondent stated the list had been provided

eleven days before the hearing. Upon Petitioner's

acknowledgment that he knew all of the witnesses, and that he

had "no problem" with anything they were going to say, the

undersigned found that any failure to provide the list did not

prejudice the Petitioner, and denied the motion. Petitioner was

advised that a motion for continuance might be entertained if

there was testimony from any of the witnesses that was a

surprise.

Petitioner testified and presented the testimony of six

other witnesses. Petitioner's Exhibits numbered 1 through 5 as

well as numbers 7 and 8 were admitted into evidence.

Petitioner's Exhibit numbered 6, a copy of an internet letter to

a newspaper editor criticizing the City's handling of several

personnel actions not involving Mr. Bratcher, was found not

relevant and was not admitted. Respondent also objected to the

introduction of two audio tapes of portions of meetings of the

City Commission of High Springs on the grounds of relevancy and

because the excerpts were taken out of context. The tapes were

admitted. Respondent was advised that to the extent Respondent

felt the excerpts were misleading, the undersigned would accept

as late-filed exhibits other portions of those tapes, or the

entire tapes, as necessary to reveal the proper context of

Petitioner's excerpts. No such late-filed exhibits were

received.

Respondent presented the testimony of three witnesses, and

Respondent's Exhibits numbered 1 through 11 were admitted.

The two-volume Transcript of the proceedings was filed with

the Division on September 13, 2011. Both parties timely

submitted Proposed Recommended Orders.

FINDINGS OF FACT

1. The City of High Springs is a Florida municipality that

employs over 15 employees.

2. During fiscal year 2009-2010, the City of High Springs

had three supervisory positions in Public Works. A Streets,

Parks, and Cemeteries Superintendent, and an Utilities

Superintendent each reported to the department head, the Public

Works Director.

3. During the summer and early fall of 2010, the City was

dealing with revenue shortfalls when preparing the 2010-2011

budget. The Commission chose to address these budgetary

concerns in part by reorganizing city government and eliminating

some staff positions.

4. In budget meetings leading up to the adoption of the

2010-2011 budget, the Commission heard testimony that stated the

city was "top-heavy" and urged the elimination of purely

managerial positions in favor of having supervisors who could do

the actual work as well as supervise.

5. Petitioner and most other employees of the City of High

Springs understood that under the City Charter, the City

Commission did not have authority to direct the hiring or

removal of any specific city employee, with the exception of a

few charter officers, such as the City Manager and City

Attorney.

6. On September 9, 2010, the City Commission of High

Springs voted to cut the existing Public Works Department in

half to create two new departments: Public Utilities and Public

Works. The new departments were to have separate

superintendents that would directly report to the City Manager,

effective October 1, 2010. Some facilities maintenance

functions were to be added to the old Streets, Parks and

Cemeteries functions along with some new administrative duties

to create the responsibilities of a new Public Works

Superintendent. Some new administrative duties were to be added

to the Public Utilities Superintendent. This new structure

would allow elimination of the position of Public Works

Director, which previously had been the department head over

both of these areas.

7. Although the authority of the City Commission was to

eliminate positions, as opposed to individuals serving in those

positions, the City Commissioners knew which individuals were

serving in the Public Works supervisory positions at the time

they voted to eliminate positions. They were aware that

Petitioner Jerry Bratcher was the Streets Superintendent,

Mr. Don Deadwyler was the Utilities Superintendent, and

Ms. Laverne Hodge was the Public Works Director.

8. Commissioners and the City Manager were aware that

under the City Charter, it is the responsibility of the City

Manager to hire and fire city employees consistent with

applicable personnel rules.

9. After the Commission vote, and prior to September 17,

City Manager James Drumm was considering which of the three

existing Public Works supervisors would remain as the two new

department heads. Although the Commission had voted to

eliminate the position of Public Works Director, Mr. Drumm

believed he could retain Ms. Hodge by placing her in one of the

new positions. At this time, Mr. Bratcher was a 56-year-old

male, Mr. Deadwyler was a 71-year-old male, and Ms. Hodge was a

58-year-old female.

10. Petitioner Bratcher was the lowest-paid of the three

Public Works supervisors: Ms. Hodge was paid the greatest

amount; Mr. Deadwyler was paid about $6,000 less than Ms. Hodge;

and Mr. Bratcher was paid about $18,000 less than Ms. Hodge.

11. Petitioner had more seniority with the City of High

Springs than Ms. Hodge. He had worked nearly 14 years for the

City, while Ms. Hodge had been employed only about 6 and one-

half years. Mr. Deadwyler also had more seniority with the City

of High Springs than Ms Hodge.

12. Ms. Hodge and Mr. Deadwyler both held water and waste

water certifications issued by the State that allowed them to

operate the City's water and wastewater treatment facilities.

Mr. Bratcher did not hold such certifications.

13. On September 17, 2010, City Manager Drumm notified

Petitioner by letter that he had been selected for layoff after

reviewing the personnel files, education, technical skills,

administrative skills, State licenses, certificates, and work

experience of all three of the existing Public Works

supervisors, as well as the financial impact on the operations

of the two new departments. The effective time of the layoff

was 4:00 P.M. on October 1, 2010.

14. On September 27, 2010, the City Commission approved

the budget and also placed City Manager Drumm on administrative

leave with pay pending a hearing to be held on October 21, 2010,

to consider his termination. The Commission also appointed

Deputy City Clerk Jenny Parham as Acting City Manager at that

time.

15. The day following the Commission's action placing City

Manager Drumm on administrative leave, Ms. Hodge notified Acting

City Manager Parham in writing that she was offering "to be laid

off, voluntarily" from her position as the City of High Springs

Director of Public Works, effective 5:00 p.m. on September 30,

2010.

16. Sometime after Ms. Hodge notified Acting City Manager

Parham that she would accept a voluntary layoff, Ms. Parham

telephoned Petitioner to ask if he would be interested in

returning to work as the Public Works Superintendent if that was

made available to him. Petitioner said he would. Ms. Parham

had called Petitioner to understand what options were available

to her in filling the positions in the new structure.

17. On September 29, 2010, Acting City Manager Parham

notified Ms. Hodge that she accepted Ms. Hodge's offer to be

voluntarily laid off the following day.

18. City of High Springs Personnel Policy 5.2 provides

that if an appropriate job becomes available within 18 months

after layoff, the former employee will be notified. An

appropriate job is one for which the laid-off employee has

adequate job-related skills.

19. Petitioner had adequate job-related skills to serve as

the Public Works Superintendent.

20. It was Acting City Manager Parham's understanding of

City Personnel Policy 5.2 that it only required a laid-off

employee to be notified of any advertised position. If the

position was not advertised, but was instead filled by the

transfer of an existing employee, she believed no notification

was required. It was further her understanding that the Policy

does not require that a laid-off employee be rehired after

notification, but instead requires only that a former employee

who applies will be treated as any other applicant and must

compete with other applicants for the position.

21. If Ms. Parham was to staff the new organizational

structure on October 1, she had to make some decisions in light

of Ms. Hodge's layoff. She logically decided to make

Mr. Deadwyler the new Utilities Superintendent, as he was the

only person remaining with the City with water and wastewater

treatment facility certifications. As for the Public Works

Superintendent position, Mr. Bratcher had effectively been gone

for two weeks. While Ms. Parham might have rescinded the

layoff, which had not yet taken effect, she instead considered

that everything had been "settled" and did not want to take such

a major step in her position as interim City Manager. More

importantly, at this point Ms. Parham was aware of rumors that

Mr. Drumm was coming back. She did not know if he would in fact

return.

22. Mr. David Benton was the only person other than

Petitioner in Public Works that had both supervisory experience

and knowledge of that department. Mr. Benton was a 39-year-old

man who was not a high school graduate. He did not have a FEMA

certification at the time he was placed in the position.

Mr. Benton did not have state water or wastewater

certifications. Mr. Benton had less education, less experience,

and fewer certifications than Petitioner, but he was qualified

to hold the position. He was a good employee with broad

experience. Mr. Benton was transferred from his position to

fill the Public Works Superintendant position on an interim

basis.

23. On October 1, 2010, when Acting City Manager Parham

transferred Mr. Benton into the Public Works Superintendent

position, Petitioner was on his last day of employment with the

City and could have been similarly transferred into that same

position if his layoff had been rescinded.

24. Petitioner was as qualified or more qualified than

Mr. Benton to hold the position of Public Works Superintendent.

Not only were the responsibilities of the new position

substantially similar to those of his position before the

reorganization, he had performed maintenance of park facilities

in his earlier position as Recreation Director.

25. After October 1, Acting City Manager Parham had a

meeting with City employees to explain the new organization.

She was asked, "Since Laverne Hodge quit, does that mean Jerry

will be returning?" or words to that effect. Ms. Parham replied

that it would be up to the next City Manager to make that

decision. Ms. Parham knew that City Manager Drumm had earlier

chosen to lay off Petitioner. She believed that there was a

possibility that Mr. Drumm would be restored to his duties as

City Manager, as she had heard rumors to that effect.

26. Mr. Drumm's employment with the City terminated on

October 21, 2010.

27. Some weeks later, Petitioner set up an appointment

with Acting City Manager Parham to find out what was to be done

to permanently fill the Public Works Superintendent position.

During Petitioner's meeting with Ms. Parham, she stated that she

had heard that Petitioner had personally contacted City

Commissioners asking them to fire Mr. James Drumm and

Ms. Laverne Hodge. Petitioner told Ms. Parham at this meeting

that he believed he had been discriminated against by sex and

age and that now he thought he would be retaliated against

because Ms. Parham believed he had been telling the City

Commissioners that they should fire Mr. Drumm and Ms. Hodge. He

assured Ms. Parham that he had not done that.

28. Petitioner had not personally contacted City

Commissioners to ask them to fire Mr. James Drumm or Ms. Laverne

Hodge.

29. On November 17, 2010, Ms. Parham notified Mr. David

Mastellar, a utilities service worker, by letter that he would

be laid off effective December 3, 2010.

30. On November 30, 2010, Ms. Parham was made permanent

City Manager to fill out the remaining term of former City

Manager Drumm.

31. Mr. Benton was made permanent Public Works

superintendent effective December 6, 2010.

32. Ms. Hodge made the statement, "I'm going to have his

job" or words to that effect, referring to Mr. Bratcher. Her

statement that she did not "recall it right now" was not

credible. Her testimony that she would need to know the

circumstances under which it was said, or the context in which

it was said, was clearly evasive. However, the statement was

not said in conjunction with any of the alleged acts of

discrimination at issue, but was said much earlier before

Petitioner was moved from his position as Recreation Director.

The statement, and Ms. Hodge's overall testimony, reflect some

personal hostility towards Petitioner, but do not indicate that

this hostility was in any way predicated upon Petitioner's

gender or age. Further, Ms. Hodge did not make any of the

personnel decisions under challenge.

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 and 120.57(1),

Florida Statutes.

34. The Florida Civil Rights Act, sections 760.01–760.11

and 509.092, Florida Statutes (2010), is patterned after federal

law contained in Title VII of the Civil Rights Acts of 1964, and

Florida courts have determined that federal discrimination law

should be used as guidance when construing its provisions. See

Fla. State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996);

Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st

DCA 1991).

35. Section 760.11(1) provides that an aggrieved person

may file a complaint with the Commission within 365 days of the

alleged violation. Petitioner timely filed that complaint, and

following the Commission's initial determination, timely filed

his Petition for Relief requesting this hearing.

36. Respondent is an employer as that term is defined in

section 760.02(7). In taking personnel actions, Mr. Drumm and

Ms. Parham acted as agents of the City.

37. Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. Fla. Dep't of Transp. v. J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

38. Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to "discharge or to fail or

refuse to hire any individual, or otherwise to discriminate

against any individual with respect to compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, national origin, age,

handicap, or marital status."

39. The City Commission did not have authority to direct

the hiring or removal of any specific city employee, with the

exception of a few charter officers such as the City Manager and

City Attorney.

40. Under the City Charter, it was the responsibility of

the City Manager to appoint and dismiss city employees

consistent with applicable personnel rules. Sex Discrimination Claim

41. In McDonnell-Douglas Corp. v. Green , 411 U.S. 792

(1973), the Supreme Court of the United States established the

analysis to be used in cases alleging claims under Title VII

that rely on circumstantial evidence to establish

discrimination. This analysis was later refined in St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993).

42. 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. If a 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, before finding discrimination "[t]he factfinder must

believe the plaintiff's explanation of intentional

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

43. In order to establish that he suffered a prima facie

case of discrimination by disparate treatment, Petitioner had to

demonstrate that he: 1) was a member of a protected class;

2) was qualified for the position; 3) suffered an adverse

employment action; and 4) was replaced by a person outside his

protected class or was treated less favorably than a similarly-

situated individual outside his protected class. Maynard v. Bd.

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

44. Petitioner demonstrated a prima facie case of sex

discrimination. Although he is a male, under Title VII he can

still be considered as a member of a protected class, as

discussed in McDonald v. Santé Fe Trail Transp. Co. , 427 U.S.

273 (1976), a case that reversed the Fifth Circuit and applied

the law to a "reverse discrimination" case involving two white

males. Petitioner established that he was well qualified for

his position. He suffered an adverse employment action, in that

he was laid off from his employment in anticipation of the staff

reorganization. Finally, he was treated less favorably than a

supervisor who was not laid off, and who was female.

45. Respondent articulated a legitimate, non-

discriminatory reason for the layoff. Respondent met that

burden of production with Mr. Drumm's testimony that as City

Manager he had decided that the two supervisors who held state

licenses for water and waste-water facilities should be the

employees to fill the new positions.

46. Petitioner had the ultimate burden to show that the

"state licenses" reason asserted by the City was pretextual, and

nothing but an excuse for discrimination. However, a reason is

not pretext for discrimination "unless it is shown both that the

reason was false, and that discrimination was the real reason."

Hicks , 509 U.S. at 515. Petitioner failed to meet this burden.

47. Petitioner did demonstrate that more money would have

been saved by the City if either of the other supervisors had

been laid off, that he had more seniority than the other

supervisors, and that he was qualified to hold the job. These

facts suggest that a different decision-maker might well have

come to a different conclusion. Respondent's assertion that

state licensure was the actual reason for the selection was

plausible, however, and there was no evidence that the true

motive for the layoff was actually discrimination.

Mr. Deadwyler was also a male, yet he was given one of the

positions. The decision to lay off Petitioner might have been

wrong, or unfair, or the product of petty politics, but there

was no evidence that Respondent's decision had anything to do

with Petitioner's gender.

48. The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful animus. As stated in Nix v. WLCY

Radio/Rahall Commc’ns , 738 F.2d 1181, 1187 (11th Cir. 1984),

"[t]he 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." Age Discrimination Claim

49. The Florida Civil Rights Act of 1992 similarly

prohibits age discrimination. Federal law prohibits age

discrimination through the Age Discrimination in Employment Act

(ADEA ) . 29 U.S.C. § 623 . Federal case law interpreting the ADEA

is cited in age discrimination cases arising under the Florida

law. Brown Dist. Co. of W. Palm Beach v. Marcell , 890 So. 2d

1227 (Fla. 4th DCA 2005).

50. The order and allocation of proof described in

McDonnell-Douglas Corp. v. Green , supra , has also been applied

in circumstantial age discrimination cases. See Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133 (2000); City of

Hollywood v. Hogan , 986 So. 2d 634 (Fla. 4th DCA 2008). The

Petitioner must first make a prima facie showing of

discriminatory treatment. He does that by proving: 1) the

Petitioner is a member of a protected class, being at least

forty years of age; 2) the Petitioner is otherwise qualified for

the position sought; 3) the Petitioner was rejected for the

position; and 4) the position was filled by a worker who was

substantially younger than the Petitioner.

51. Petitioner demonstrated a prima facie case of age

discrimination in the City's selection of the new Public Works

Superintendent. He is over the age of 40 and was well qualified

to fill the position. He was not given the position. The

position instead was given to a man less than 40 years old.

52. Respondent then had the burden to articulate a

legitimate, non-discriminatory reason for not offering the

position to Petitioner. Respondent met this burden. Ms. Parham

testified that she considered Petitioner's layoff to be

"settled" and that she thought Mr. Drumm might be returning.

She concluded that Mr. Benton was the only remaining person in

Public Works that had any supervisory experience and she

considered that he had broad experience with the City.

53. City Personnel Policy 5.2 requires a laid-off employee

to be notified if an appropriate job becomes available within 18

months of that employee's layoff. The policy does not require a

laid-off employee to be rehired after notification, but instead

requires only that a former employee who applies will be treated

as any other applicant. The former employee must compete with

other applicants for the position.

54. At the time Ms. Parham made her decision, she may have

been correct in her conclusion that the duty to notify did not

apply to Petitioner, either because Petitioner was actually

still employed or because the position had not been advertised,

but as Acting City Manager, Ms. Parham could have rescinded

Petitioner's layoff and given him the position.

55. However, even if Ms. Parham's action to instead place

Mr. Benton in the position was a poor business decision or was

based on a misunderstanding of the situation, this would not

constitute age discrimination.

56. Again, as with the sex discrimination claim earlier,

the quality of Ms. Parham's decision-making is not at issue. As

noted in Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir.

2000), the legal system does "not sit as a super-personnel

department that reexamines an entity's business decisions. No

matter how medieval a firm's practices, no matter how high-

handed its decisional process, no matter how mistaken the firm's

managers, the ADEA does not interfere. Rather our inquiry is

limited to whether the employer gave an honest explanation of

its behavior." (Citations omitted.)

57. As the Supreme Court noted in Hazen Paper Co. v.

Biggins , 507 U.S. 604, 610 (1993), when a Petitioner alleges

disparate treatment, "liability depends on whether the protected

trait (under the ADEA , age) actually motivated the employer's

decision." That is, the Petitioner's age must have actually

played a role in the employer's decision-making process and had

a determinative influence on the outcome. Id . There is no

evidence indicating that age discrimination played a role in

Ms. Parham's decision-making process.

Retaliation Claim

58. While the checkbox for alleging a claim of retaliation

in Petitioner's original filing with the Commission was not

checked, his submissions to the Commission did contain

allegations under a title of "Retaliation" that, taken in a

light most favorable to the Petitioner, might be held to

constitute a claim of retaliation, and the undersigned allowed

testimony addressing that issue at hearing. Cf . Scholz v. RDV

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

plaintiff cannot bring claims in a lawsuit that were not

included in EEOC charge).

59. Section 760.10(7), provides in relevant part, "It is

an unlawful employment practice for an employer . . . 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."

60. The evidence at hearing showed that Petitioner

informed Ms. Parham that he felt he had been discriminated

against on the basis of age and sex. He notified her of this in

their meeting that took place some weeks after Petitioner's

layoff and the selection of Mr. Benton to fill the position on

an interim basis on October 1, 2010. These statements could

constitute opposition by Petitioner to an unlawful employment

practice. However, the only testimony or documentary evidence

upon which a finding can be based at best shows only

"retaliation" based upon Ms. Parham's erroneous belief that

Petitioner had been directly telling City Commissioners that

they should fire Mr. Drumm and Ms. Hodge. Even if this were

Ms. Parham's reason for making Mr. Benton's position permanent

on December 6, 2010, it would not constitute retaliation under

the Florida Civil Rights Act.

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That a final order be entered dismissing Petitioner's

complaint.

DONE AND ENTERED this 28th day of September, 2011, in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 28th day of September, 2011.

COPIES FURNISHED :

Jerry W. Bratcher

355 Southwest Tiffany Court

Fort White, Florida 32038

Timothy M. Warner, Esquire

Warner Law Firm, P.A.

519 Grace Avenue

Post Office Box 1820

Panama City, Florida 32402

Thomas DePeter, Esquire

City of High Springs

23327 Northwest County Road 236, Suite 30

High Springs, Florida 32643

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.