12-002550 Sandra A. Jones vs. Orange County Clerk Of Courts Status: Closed Recommended Order on Thursday, June 27, 2013.

Summary: Petitioner did not meet her burden of proving that Respondent engaged in an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA A. JONES ,

Petitioner ,

vs. Case No. 12 - 2550

ORANGE COUNTY CLERK OF COURTS ,

Respondent .

/

RECOMMENDED ORDER

A final hearing in this cause was held on April 25, 2013, by

video teleconference before the Division of Administrative

Hearings by its designated Administrative Law Judge Linzie F.

Bogan in sites between Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sandra A. Jones, pro se

2652 Cedar Bluff Lane

Ocoee, Florida 34761

For Respondent: Donna M. Hansen, Esquire

Dean, Ringers, Morgan and Lawton, P.A.

Post Office Box 2928

Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

199 2, as alleged in the Charge of Discrimination filed by

Petitioner on December 9 , 2011.

PRELIMINARY STATEMENT

On December 9, 2011, Petition er, Sandra A. Jones

(Petitioner), filed with the Florida Commission on Human

Relations (FCHR) a Charge of Discrimination and alleged therein

that her former employer, Office of the Orange County Clerk of

Courts, committed an unlawful employment practice in violation of

section 760.10, Florida Statutes (2010). 1/ The allegations were

investigated, and on June 27 , 201 2 , FCHR issued its

Determination: No Cause. A Petition for Relief was fil ed by

Petitioner on July 24 , 201 2 .

FCHR transmitted the case to the Division of Administrative

Hearings on July 27, 2012 . Following the granting of motions for

continuance, a Notice of Hearing by Video Teleconference was

issued setting this case for final hearing on April 2 5, 2013 .

At the hearing, Petitioner testified o n her own behalf.

Respondent presented the testimony of Tracy Gasinski,

Marlene Muscatello, and Amy Gardner . The parties jointly

presented the deposition testimony of Jacquelyn Clarke (Joint Ex.

94). Petitioner ' s Exhibits 8, 10, 13 through 18, 20, 21, 22, 27,

28, 33, 34, 35, 37 through 40, 92, and 93 were admitted into

evidence. Respondent ' s Exhibits 3, 56, 72 through 7 5, 77, 78,

84, 85, 87, and 90 were admitted into evidence.

A T ranscript of the proceeding was filed with the Division of

Ad minist rative Hearings on June 3 , 201 3 . The parties timely

filed p roposed r ecommended o rders, which have been considered in

the preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner commenced her employment with Respondent in

November 1997. On December 9, 2010, Petitioner ceased being

employed by Respondent.

2. In her Charge of Discrimination, Petitioner alleges that

Respondent discriminated against her on the basis of " disability "

and " retaliation. " Exhibit A to the Charge of Discrimination

provides as follows:

I was employed with Orange County Clerk of

Courts since November 1997. During my tenure

with Orange County Clerk of Courts, I served

as a Supervisor and satisfactorily and/or

above satisfactorily performed the essential

job duties of my position. Notwithstanding

my performance, I was subjected to

discrimination based on my handicap and/or

disability, as further described below.

In 1999 I injured my back while on the job

and in 2003 I had surgery for same. I had 2

rods and 4 screws placed in my back. On

September 27, 2010, I was on FMLA leave until

December 8, 2010, and I requested an

extension until December 27, 2010, but it was

denied. While out on FMLA leave I had the

rods removed from my back, which is why I was

not able to ret urn to work on December 9,

2010. The reason I was out of work all this

time was a direct result from the workers

compensation injury I sustained in 1999.

Many of my colleagues that were unable to

report to work were provided the opportunity

to work from home, however I was not. I feel

that I was targeted for termination even

though such non - handicapped and/or disabled

employee was not subject to any adverse

employment action.

Based on the foregoing actions of Orange

County Clerk of Courts described here in, I

believe that I have been discriminated and

retaliated against, including my unlawful

termination, based on my handicap and/or

disability in violation of the Florida Civil

Rights Act of 1992 and Title VII of the Civil

Rights Act. Due to my unlawful t ermination,

I have suffered and continue to suffer severe

financial and emotional damages. I am

seeking compensation for my lost earnings, my

lost earnings capacity, my emotional

distress, and for punitive damages because

Orange County Clerk of Courts act ed with

malice and/or reckless disregard for my

protected rights.

3. Following the " no cause " determination by FCHR,

Petitioner requested an administrative hearing by filing a

Petition for Relief. In her Petition for Relief, Petitioner,

when directed t o describe the " disputed issues of material fact, "

noted the following: " Respondent states Complainant abandoned

her position. Complainant had vacation time not used on

company ' s books Î other employees have/were granted extension of

time off Î they had no time accrued on books. "

4. Petitioner was employed by Respondent as a supervisor in

the Division of Records Management. In her role as supervisor,

Petitioner, among other duties, was responsible for supervising

" a records tech one, two, and three " as well as the person that

occupied the position designated as the team " lead. "

Petitioner ' s job description lists the following as essential

duties and responsibilities of her position:

Perform any or all of the duties described

below depending upon the Di vision to which

assigned. The omission of specific

statements of duties does not exclude them

from the position if the work is similar,

related, or a logical assignment to the

position.

Assign, schedule, review and evaluate the

work of subordinates. Ass ist in various

areas of personnel administration to include

preparation of employee performance

evaluation, conduct of employee action plans,

and employee counseling/discipline.

Monitor customer assistance to include

service counter/courtroom coverage, an d

provide assistance when appropriate.

Coordinate divisional orientation and oversee

the training of new employees.

Provide ongoing divisional training program

to include efficient use of a variety of

court software, case tracking, and other

computer sys tems.

Maintain time and attendance records and

related reports for divisional personnel.

Review/approve employee leave requests.

Respond to complaints, difficult situations

and non - routine inquiries from the public in

a professional and timely manner.

Resolve problems and answers questions that

subordinates are unable to solve.

Provide assistance to judicial assistants,

judges, and other court personnel.

Verify that documents processed through the

front counter are distributed properly and in

a timely manner.

Assist in collecting/analyzing data and

prepare associated reports.

Inform management of any problems or issues.

Establish/maintain effective intra - divisional

working relationships where areas of

responsibility are shared among divisions.

Clos e out and balance the register when

required. Complete end of day audit per

Clerk ' s Cash Control Policy as necessary.

Communicate with coworkers, management,

staff, the general public, and others in a

timely, courteous and professional manner.

Conform w ith and abide by all regulations,

policies, work procedures and instructions.

Respond promptly when returning telephone

calls and replying to correspondence

including email and faxes/emails.

Act, dress, and behave in a professional

manner to reflect a po sitive image of the

Clerk ' s Office.

Fully support the Clerk ' s Quality Policy and

standards of Performance Excellence by

delivering exemplary services to both

internal and external customers. Provide the

utmost in customer service efficiently,

effectively , and expeditiously.

Develop, implement, and provide tools

necessary for staff to collect accurate and

useable data for the Performance/Productivity

Measurement System (MOS).

Utilize available tools to collect necessary

information and report daily/weekl y

Performance/Productivity Measurement System

(MOS) data to the Assistant Manager.

Perform observations, calculations, and

implementation of forms necessary for the

Performance/Productivity Measurement System

(MOS).

Monitor process changes in order to ev aluate

Performance/Productivity Measurement System

(MOS) measurements accordingly. Report these

findings to the management team and Special

Projects Coordinator for appropriate action.

Assist in the preparation and update of the

Performance/Productivity Measurement System

(MOS) Area Books for the division.

Continuously strive to instill Performance

Excellence in all functions within the

Division through teamwork, customer feedback,

and process based management.

5. Throughout her tenure as a supervisor , Petitioner

generally received " acceptable " ratings (highest ratings

possible) on her annual employee performance appraisals. On

June 1, 2009, Petitioner ' s supervisor, Cindy Startz, noted that

Petitioner was viewed as a " great asset " to the office of th e

Orange County Clerk of Courts.

6. In 1999, Petitioner sustained a work related injury to

her back. In reviewing the record, it appears as though

Petitioner, sometime in 2003, had surgical rods inserted in her

back in order to stabilize her spine. The rods were surgically

removed from Petitioner ' s back on or about December 9, 2010.

7. Prior to her December 2010 back surgery, Petitioner,

from August 3, 2010, through August 17, 2010, used two weeks of

Family Medical Leave Act ( FMLA ) leave to care for h er child.

Petitioner ' s FMLA leave year for the period in question commenced

on August 3, 2010. Therefore, for the twelve month period

beginning August 3, 2010, Petitioner had twelve weeks of FMLA

leave or a maximum of 480 working hours available for use .

8. On or about October 4, 2010, Petitioner submitted to

Respondent another request for FMLA leave. This request from

Petitioner was for the period September 27, 2010, through

October 27, 2010. Petitioner ' s FMLA leave request for this

period was appro ved by Respondent on November 2, 2010.

9. Petitioner did not return to work on October 28, 2010.

She sought and was granted by Respondent a continuation of her

FMLA leave through and including December 8, 2010. As of

December 8, 2010, Petitioner had exhausted her 12 weeks of FMLA

leave for the annual leave period that commenced on August 3,

2010.

10. Several days prior to exhausting her FMLA leave,

Petitioner was informed by Respondent that her FMLA leave

entitlement for the relevant period would e xpire on December 8,

2010. In anticipation of the expiration of her FMLA leave

entitlement, Petitioner, on or about December 2, 2010, submitted

to Respondent a request for leave of absence without pay for the

period December 9, 2010, through December 27, 2010. In support

of her request for leave of absence, Petitioner provided to

Respondent a statement from her orthopedist.

11. According to her orthopedist, Petitioner suffered from

chronic low back pain and was " having surgery on 12/9/10 for

hardware re moval [from her back, and that] [s]he will be out of

work from 12/9/10 Î 12/27/10, and [these] dates may be adjusted

as needed pending [patient] recovery. " The orthopedist also

noted that for the two to three month period following her

surgery, it was ant icipated that Petitioner would experience one

or two " flare - ups " with her back that would require orthopedic

intervention.

12. On December 8, 2010, Petitioner ' s supervisor,

Marlene Muscatello, sent Petitioner an email message regarding

Petitioner ' s r equest for a leave of absence without pay. The

email message provides as follows:

Hello Sandra,

I received your leave of absence request for

December 9 through December 27th.

Your request has been reviewed and

considered. However, the Records Managemen t

division is unable to accommodate your leave

of absence request due to the workload burden

on the division.

Thank you,

Marlene

13. On September 6, 2010, Marlene Muscatello became

Petitioner ' s supervisor and division manager for Respondent ' s

Records M anagement Division. Ms. Muscatello, when considering

Petitioner ' s request for leave of absence, was familiar with the

needs of the Records Management Division. In explaining why

Petitioner ' s request for leave of absence was denied,

Ms. Muscatell o credibly testified that as a result of

Petitioner ' s absence, it was necessary to reassign Petitioner ' s

responsibilities to other employees in the Records Management

Division. The employees that were tasked with Petitioner ' s work

functions were required to perform Petitioner ' s job functions as

well as their own. According to Ms. Muscatello, this working

arrangement created a hardship on the employees in the Records

Management Division.

14. Petitioner disputes that her absence from the office

during her FMLA leave period created a hardship on her fellow

employees. According to Petitioner, her absence from the office

allowed the person serving in the position of tech - three, " to

jump in and learn more. " Ms. Muscatello generally agrees that

Petitioner ' s a bsence provided learning opportunities for other

employees. However, Ms. Muscatello also notes that while the

other employees in the division were taking on new

responsibilities associated with Petitioner ' s absence, the

employees were still responsible fo r performing their regular

duties.

15. In addition to the hardship placed on other employees

resulting from Petitioner ' s absence, Ms. Muscatello was also

concerned about the uncertainty surrounding when Petitioner would

be released by her physician to re turn to work. Specifically,

Ms. Muscatello was concerned about that portion of the

physician ' s statement indicating that December 27, 2010, was only

an anticipated release to return to work date and that

Petitioner ' s actual return to work date " may be adj usted as

needed pending [patient] recovery. " Petitioner contends that

because the doctor ' s statement is " open ended, " it was possible

that Petitioner could have been released to return to work prior

to December 27, 2010. It is precisely the " open ended " nature of

the doctor ' s statement that factored into Ms. Muscatello ' s

decision to deny Petitioner ' s request for leave without pay. It

is clear from the doctor ' s statement that Petitioner was unable

to perform her job duties upon exhaustion of her FMLA leav e.

16. In addition to the previously referenced email,

Respondent also sent on December 8, 2010, correspondence to

Petitioner wherein she was advised of the following:

This is to advise you that as of December 8,

2010, your 12 weeks of leave under the

fe deral Family and Medical Leave Act is

exhausted. The State of Florida does not

mandate any additional leave rights beyond

the federally mandated FMLA and all of your

accrued sick and vacation leave has been

exhausted.

In accordance with our FMLA policy a nd as is

permitted by FMLA regulations, we require all

employees on leave to provide notice of their

intent to return to work and if returning, a

note from their medical provider returning

them to their job.

The documentation you provided on December 2,

2 010, from your physician states that you

need to be out of work from December 9th

through December 27th. As outlined in the

Clerk of Courts Employee Handbook, Section

408, you submitted a request to your division

management for a Leave of Absence beyond y our

FMLA eligibility. Unfortunately your

division is unable to approve your request at

this time. Clerk of Courts policy states

that if you do not return to work following

the exhaustion of your FMLA, you will be

considered to have voluntarily resigned.

When you are released by your physician to

return to work, you may apply for available

employment opportunities with the Clerk of

Courts. We appreciate your service to the

Orange County Clerk of Courts and certainly

wish you well in the future. If you h ave any

questions you may reach me at 407 - 836 - 2302.

Information regarding your rights to continue

your employee benefits under COBRA will be

sent to you separately. Please contact our

office to arrange the return of any property

belonging to the Clerk of Courts still in

your possession (employee ID badge, parking

card, keys, etc.)

Sincerely,

Jacquelyn Clarke, SPHR

Sr. Human Resource Generalist

17. In her Charge of Discrimination, Petitioner alleges

that " [m]any of her colleagues that were unable to r eport to work

were provided the opportunity to work from home, however I was

not. " The evidence is undisputed that Petitioner never requested

of Respondent that she be allowed to work from home. It is

illogical to suggest that Respondent discriminated ag ainst

Petitioner by not allowing her to work from home when Petitioner

never asked for such an accommodation. There was no evidence

presented that other employees were allowed to work from home

under circumstances where this option was unilatera l ly presen ted

to the employees as a proposed accom mo dation.

18. As previously noted, Petitioner, in her Petition for

Relief, alleges that Respondent discriminated against her by not

allowing her to use her accrued vacation leave upon exhaustion of

her FMLA leave. In comparing the Petition for Relief with the

Charge of Discrimination filed by Petitioner, it is the case that

Petitioner did not make any reference, express or implied, to

unused vacation time in the Charge of Discrimination that was

investigated by FCH R. The undersigned has only considered those

issues raised in the Charge of Discrimination.

19. During Petitioner ' s employment with Respondent, the

position that she occupied was covered by the Orange County Clerk

of Courts Employee Handbook (Handbook). Section 409(E) of the

Handbook provides, in part, that " [i]f the employee does not

return to work following the conclusion of a family or medical

leave, the employee will be considered to have voluntarily

resigned. " Petitioner signed for and received a copy of the

Handbook on February 22, 2000.

20. Section 408 of the Handbook governs requests for leave

of absence without pay. This section provides in part that

" [l]eave of absence without pay may be granted with manager ' s

approval to eligible employees in instances where unusual or

unavoidable circumstances require prolonged absence. "

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (201 2 ).

22. 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, 21 (Fla. 3d DCA 2009); Brand v. Fla. Power

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

23. Section 760.10(1) (a), Florida Statutes, states that it

is an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

disability. Sectio n 760.10(7), provides that it is an unlawful

employment practice for an employer to retaliate against an

employee for engaging in statutorily protected expression.

24. For purposes of a claim of discrimination based upon

" disability, " it must constitute a handicap. Florida courts have

recognized that actions under the Florida Civil Rights Act are

analyzed under the same framework as the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq . See Chanda

v. Engelhard/ICC, f.k.a. Ciba - Geigy , 23 4 F.3d 1219 (11th Cir.

2000). Accordingly, Petitioner must establish that she is a

qualified individual with a disability. A disability is an

impairment that substantially limits one or more major life

activities. Major life activities are functions suc h as caring

for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. Chanda at 1222. On

December 9, 2010, Petitioner met the definition of being a

disabled individual. However, Petitioner, on December 9 , 2010,

was not qualified to perform the functions of her job.

25. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257,

1266 (11th Cir. 1999). Direct evidence of discrimination is

ev idence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Maynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003).

26. " Direct evidence is composed of ' only the most blatant

remarks, whose intent could be nothing other than to discriminate '

on the basis of some impermissible factor. " Schoenfeld v.

Babbitt , supra . Petitioner presented no direct evidence that her

request for leave without pay was denied because of her

disability .

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

Shealy v. City of Albany , 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 t hrough

inferential and circumstantial proof. " Kline v. Tennessee Valley

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

28. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting burden

analysis establish ed by the U.S. Supreme Court in McDonnell

Douglas v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), is applied. Under this well - established model of proof,

the charging party bears the initial burde n of establishing a

prima facie case of discrimination. When the charging party,

i.e., Petitioner, is able to establish 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 present evidence that the decision

was non - discriminatory. Id. ; Alexander v. Fulton Cnty. , 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 of

demonstrating pretext 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. Chandler , supra , at

1186; Alexander v. Fulton Cnty. , supra .

29. " Although the intermediate burdens of production shift

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

fact that the emp loyer intentionally 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 ul timate burden of proving intentional discrimination

against the plaintiff remains with the plaintiff at all times. " ).

Once the matter has, as in the instant case, been fully tried, " it

is no longer relevant whether the plaintiff actually established a

pri ma facie case [and] . . . the only relevant inquiry is the

ultimate, factual issue of intentional discrimination. " Green v.

Sch. Bd. of Hillsborough Cnty. , 25 F.3d 974, 978 (11th Cir.

1994)(citing U.S. Postal Serv. Bd. of Governors. v. Aikens , 460

U.S. 71 1, 714 - 15 (1983)).

30. Petitioner has failed to establish that Respondent ' s

decision denying her request for leave of absence without pay was

motivated by impermissible discriminatory animus. Respondent

denied Petitioner ' s request for leave without pa y because of the

hardship caused on the staff by Petitioner ' s absence and the

uncertainty surrounding the date upon which Petitioner was

scheduled to return to work. Petitioner failed to prove that the

reasons offered by Respondent when denying her reques t were

pretextual . Additionally, on December 9, 2010, Petitioner was

not medically able to perform the tasks required by her job and

she had exhausted her FMLA leave. Employers are not required to

retain persons who are unable to perform the job duties t he work

requires. An otherwise qualified handicapped person cannot be

discharged based upon the handicap. In this instance, Petitioner

was simply not qualified to do the work on December 9, 2010. 2/

Accordingly, Petitioner has failed to meet her burden of proving

unlawful discrimination by Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order finding that Respondent, Orange

County Clerk of Courts , did not commit an unlawful employment

practice as alleged by Petitioner, Sandra A. Jones , and denying

Petitioner ' s Charge of Discrimination.

DONE AND ENTERED this 27th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 27th day of June , 2013 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2010,

unless otherwise indicated.

2/ Petitioner repeatedly asserts that Respondent retaliated

against her bec ause she used her FMLA leave. As an initial

matter, it is important to note that the Division of

Administrative Hearings (DOAH) does not have jurisdiction with

regard to an alleged violation of the FMLA. However,

Petitioner ' s retaliation claim seems to s uggest that because a

portion of her FMLA leave was due to her disability, that

Respondent ' s action of not granting her leave of absence request

was retaliatory action based on her disability. Presuming that

DOAH has jurisdiction to consider this claim, P etitioner ' s

argument fails for a number of reasons. Contrary to Petitioner ' s

assertion, the credible evidence establishes that Respondent ' s

decision to deny Petitioner ' s leave of absence request was due to

Petitioner ' s inability to perform the requirement s of her job

resulting from her post - FMLA surgery that coincided with her

December 9, 2010, return to work date. Furthermore, Respondent ' s

decision to deny Petitioner ' s leave of absence, as previously

noted, was also based upon the uncertainty surrounding

Petitioner ' s return to work following her surgery and the

resulting hardship on Respondent ' s employees caused by

Petitioner ' s absence. Petitioner has not proven any such

retaliatory intent on the part of Respondent.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Sandra A. Jones

2652 Cedar Bluff Lane

Ocoee, Florida 34761

Donna M. Hansen, Esquire

Dean, Ringers, Morgan and Lawton, P.A.

Post Office Box 29 28

Orlando, Florida 32802

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.